Broadcast Music, Inc. et al v. PRRM Management, LLC et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Broadcast Music, Inc., et al.
v. 	Civil No. 18-cv-1166-AJ
PRRM Management Co., LLC,
d/b/a Jewel Nightclub;
John M. Crosson
REPORT AND RECOMMENDATION
Plaintiffs, holders of legal rights in copyrighted musical
compositions, filed this copyright infringement action against
the owner and operator of a Manchester, New Hampshire club,
alleging that the club used the copyrighted material without a
license or permission. 	See 17 U.S.C. § 101 et seq. (“the
Copyright Act”). 	The defendants have defaulted. 	Doc. No. 17.
Plaintiffs’ unopposed motion for default judgment (Doc. No. 19)
is before the undersigned magistrate judge for a report and
recommendation. 	See Fed. R. Civ. P. 55(b)(2). 	For the reasons
that follow, the district judge should grant plaintiffs’ motion.
Case 1:18-cv-01166-AJ Document 21 Filed 06/17/19 Page 1 of 9

2
I. 	Standard of Review
After default is entered and when, as here, the amount at
issue is not a sum certain, “the party must apply to the court
for a default judgment.” 	Fed. R. Civ. P. 55(b)(2); see also KPS
& Assocs., Inc. v. Designs by FMC, Inc., 318 F.3d 1, 18-19 (1st
Cir. 2003). 	“Although a defaulting party admits the factual
basis of the claims asserted against it, the defaulting party
does not admit the legal sufficiency of those claims.” 	10 James
Wm. Moore, Moore's Federal Practice § 55.32[1][b] (3d ed. 2013).
Before entering default judgment, the court must determine
whether “[t]he claimant [has] state[d] a legally valid claim for
relief.” 	Id.; see also Ramos–Falcon v. Autoridad de Energia
Electrica, 301 F.3d 1, 2 (1st Cir. 2002).
II. 	Background
By virtue of their default, defendants have admitted the
following facts, as set forth in the complaint. 	Doc. No. 1.
Plaintiff Broadcast Music, Inc. (“BMI”) has been granted the
right to license the public performance rights in millions of
copyrighted musical compositions, including those at issue in
this case. 	The remaining plaintiffs are the owners of the
copyrighted music in this matter. 	Defendant PRRM Management,
LLC (“PPRM”), operates, maintains and controls the Jewel
Case 1:18-cv-01166-AJ Document 21 Filed 06/17/19 Page 2 of 9

3
Nightclub (“Jewel”) in Manchester, New Hampshire. 	In operating
Jewel, PRRM publicly performs musical compositions and/or causes
musical compositions to be publicly performed. 	Defendant John
M. Crosson, a PRRM manager, is responsible for Jewel and PRRM’s
operation and management.1
Beginning in March 2017, BMI contacted PRRM over thirty
times, by phone, mail and email, with respect to the necessity
of purchasing a license for the public performance of musical
compositions BMI licensed. BMI’s correspondence included cease
and desist notices, warning PRRM that it must immediately cease
all use of BMI-licensed music in Jewel. 	Plaintiffs assert four
claims of willful copyright infringement, based upon PRRM’s
unauthorized public performance of BMI-licensed music during
April 2018.2
III. 	Discussion
A. 	Infringement
Under the Copyright Act, copyright owners possess the
exclusive rights to authorize public performance of their
musical compositions. 	The violation of this right constitutes
1 For ease of reference, the defendants are referred to
collectively as “PRRM.”
2 BMI retained an investigator who recorded the music played at
Jewel in April 2018.
Case 1:18-cv-01166-AJ Document 21 Filed 06/17/19 Page 3 of 9

4
infringement. 	17 U.S.C. §§ 106, 501(a). 	The owners of a
copyright may protect their interest by bringing a private
action for infringement occurring while they are the owner of
the copyright. 	Id. at § 501(b). 	Copyright owners may seek an
injunction against future infringement, statutory damages,
costs, and attorney fees. 	Id. at §§ 502, 504(c), 505.
To establish a case of copyright infringement based on a
public performance “a plaintiff must demonstrate (1) originality
and authorship of the work involved; (2) compliance with all
formalities required to secure a copyright under the Act; (3)
plaintiff's ownership of the copyright in question; (4) public
performance of the work; and (5) lack of authorization for the
performer to perform the work.” 	Broad. Music, Inc. v. Rindge
Land Corp., No. Civ. 93-460-JD, 1995 WL 136940, at *4 (D.N.H.
March 27, 1995). 	Given the admissions inherent in defendants’
default, the court finds that the plaintiffs have successfully
established their infringement claims.
B. 	Remedies
Plaintiffs seek an injunction against future infringements,
statutory damages, costs and attorneys’ fees. 	The court
addresses these remedies in turn.
Case 1:18-cv-01166-AJ Document 21 Filed 06/17/19 Page 4 of 9

5
1. 	Injunction
The Copyright Act allows the court to “grant temporary and
final injunctions on such terms as it may deem reasonable to
prevent or restrain infringement of a copyright.” 	17 U.S.C. §
502(a). 	In copyright actions “’[c]ourts generally grant
permanent injunctions where liability is clear and there is a
continuing threat to the copyright.’” 	BMG Music v. Marsters,
616 F. Supp. 2d 151, 155 (D. Me. 2009) (quoting Universal City
Studios Prods. v. Bigwood, 441 F. Supp. 2d 185, 192 (D. Me.
2006)). 	The court has already found PRRM liable for
infringement. 	And, as previously noted, BMI warned PRRM that it
required a license and permission to play the copyrighted music
nearly forty times between April 2017 and January 2018, to no
avail. 	Moreover, in an affidavit submitted in support of the
instant motion, plaintiffs assert, on information and belief,
that PRRM is continuing to perform BMI-licensed music without
authorization. 	Mullaney Aff. (Doc. No. 19-3) ¶ 16. 	In light of
these uncontroverted facts, the court has little difficulty
concluding that there is a continuing threat to the copyright.
The court therefore recommends that the district judge issue a
permanent injunction against the defendants enjoining their use
of BMI-licensed compositions.
Case 1:18-cv-01166-AJ Document 21 Filed 06/17/19 Page 5 of 9

6
2. 	Statutory Damages
The Copyright Act allows a copyright owner “to recover,
instead of actual damages and profits, an award of statutory
damages . . . in a sum of not less than $750 or more than
$30,000 . . .” 	17 U.S.C. § 504(c)(1). 	Among the factors the
court can consider are “(1) expenses saved and profits reaped by
the defendant, (2) revenues lost by the plaintiffs, (3) the
deterrent value of the award, and (4) whether the infringement
was willful or innocent.” 	Polygram Int’l Publ’g, Inc. v.
Nevada/TIG, Inc., 855 F. Supp. 1314, 1335 (D. Mass. 1994).
Plaintiffs request $4,000 for each of the four
infringements, totaling $16,000. 	The plaintiffs estimated that
PRRM would have paid $11,376.00 in licensing fees between April
2017 and April 2018. 	Mullaney Aff. (Doc. No. 19-3) ¶ 16. 	The
current annual license fee is slightly less than $4,000. Id.
Given this evidence of plaintiffs’ lost revenue and PRRM’s
expenses avoided, the court finds plaintiffs’ request
appropriate. 	PRRM’s failure to respond either to BMI’s
entreaties or this lawsuit provides additional support for such
an award. 	The district court should award plaintiffs $16,000 in
statutory damages, as requested.
Case 1:18-cv-01166-AJ Document 21 Filed 06/17/19 Page 6 of 9

7
3. 	Costs and Attorneys’ Fees
The Copyright Act provides that the court “in its
discretion may allow the recovery of full costs by or against
any party other than the United States . . . [and] reasonable
attorney's fees to the prevailing party as part of the costs.”
17 U.S.C. § 505. 	Here, such costs are warranted because
plaintiffs “would not have had to bring this action but for
[PRRM]'s deliberate refusal to obtain proper licensing.”
Merrill v. Cty. Stores, Inc., 669 F. Supp. 1164, 1172 (D.N.H.
1987).
Plaintiffs’ attorney’s affidavit, supported by billing
records, represents that he and his firm have incurred $2,702.50
in fees,3 an additional $175 anticipated to be billed in this
action, and expenses totaling $501. Plaintiff therefore seeks a
total of $3,378.50 in costs and fees. 	Sullivan Aff. (Doc. No.
19-8). 	“In determining the amount of fees that should be
awarded the court will consider, among other things, counsel's
time and labor, the complexity of the case, the amount
recovered, and the reasonableness of the time spent by counsel.”
Sailor Music v. Mai Kai of Concord, Inc., 640 F. Supp. 629, 636.
(D.N.H. 1986). 	Defendants have not objected to the
reasonableness of the fees and costs, and considering the
3 This fee total represents a modest (and reasonable) nine hours
of work.
Case 1:18-cv-01166-AJ Document 21 Filed 06/17/19 Page 7 of 9

8
factors listed above, the court finds that the requested amounts
are reasonable. 	Therefore, the district judge should grant
plaintiffs’ request for costs and attorney's fees in the amount
of $3,378.
IV. 	Conclusion
For the reasons set forth herein, the district judge should
grant plaintiffs’ motion for default judgment (Doc. No. 19) as
follows: 1) plaintiffs shall recover from defendants PRRM
Management, LLC and John M. Crosson, jointly and severally,
statutory damages in the amount of $16,000.00, plus interest
pursuant to 28 U.S.C. § 1961; 2) plaintiffs shall recover from
defendants PRRM Management, LLC and John M. Crosson, jointly and
severally, full costs in this action, including reasonable
attorney's fees in the amount of $3,378.50; and 3) defendants
PRRM Management, LLC and John M. Crosson and their agents,
servants, employees and all persons acting under their
permission or authority shall be permanently enjoined and
restrained from infringing the copyrighted musical compositions
licensed by Broadcast Music, Inc.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Failure to file objections within the specified
Case 1:18-cv-01166-AJ Document 21 Filed 06/17/19 Page 8 of 9

9
time waives the right to appeal the district court’s order. 	See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
June 17, 2019
cc: 	counsel of record
Case 1:18-cv-01166-AJ Document 21 Filed 06/17/19 Page 9 of 9