MILENE MUSIC

551 F. Supp. 1288 (1982) | Cited 0 times | D. Rhode Island | November 24, 1982

SELYA, District Judge.

OVERTURE

These actions for monetary and injunctive relief based on alleged copyright infringement are before the Court on plaintiffs' motions for summary judgment and defendants' objections thereto. The cases were consolidated by order dated July 8, 1982 for the purpose of facilitating pre-trial discovery and consideration of these motions. 1" The motions, and the opposition thereto, have been fully briefed by the parties. Oral arguments were scheduled to be heard by the Court on November 10, 1982, at which time counsel for all parties elected to waive the same and to rest upon their respective briefs. Jurisdiction is based on 28 U.S.C. § 1338(a).

After examining the record, it appears that the score of this judicial libretto possesses a distinctive musicological tonality, which the Court will endeavor to capture and to summarize.

FIRST MOVEMENT

Each of the plaintiffs is a music publisher, and each is a member of the American Society of Composers, Authors, and Publishers (hereinafter "ASCAP"). The plaintiffs, through ASCAP, license copyrighted material to individuals and businesses wishing to perform the material in public, or to sponsor such performances.

The corporate defendant (hereinafter "M.A.P.") is the owner and operator of a popular local "watering hole" 2" which is located in Exeter, Rhode Island, offering food, drink, and live nocturnal entertainment to its patrons. Each of the individual defendants are shareholders and-or officers of M.A.P., and collectively manage its affairs. 3"

Until April 1, 1976, M.A.P. held a valid license from ASCAP permitting public performances of plaintiffs' compositions at the Covered Wagon. On or about April 1, 1976, this license was revoked for failure to pay license fees (amounting to $870.00) theretofore accrued. On numerous occasions thereafter, representatives of ASCAP offered to reinstate the license if the previously accrued fees owed by M.A.P. were paid. Defendants repeatedly rebuffed these requests for payment. 4" On September 27, 1980 and again in early August of 1981, agents of ASCAP patronized the Covered Wagon, apparently as part of a surreptitious (but entirely legal) undercover investigation. During the visit of September 27, it was noted that the following compositions were performed by a band: "Blue Eyes Crying In The Rain", "Bad, Bad Leroy Brown", and "Tulsa Time". On the visit of August 1-2, 1981, the agents noted that live renditions were given of the following songs: "Peaceful Easy Feeling", "Me and You and a Dog Named Boo", "Tulsa Time", "Orange Blossom Special", and "Blue Eyes Crying In The Rain". At all times relevant hereto, plaintiffs (collectively) are and have been the proprietors of the copyrights for each and all of the works in question. n5 n5 According to defendants' failure to respond to requests for admissions, facts shown in the following table, consolidated and adapted from the complaints, are not in dispute: Certificate of Musical Date of Pub- Registration Plaintiff Composition Writers lication Number Renewal Jazz Bird "Peaceful Easy Jack 1/12/73 EP 308639Music and Feeling" Tempchin Registered As UnpublishedWB Music 1/27/72 EU 310025Corp.FamousMusic "Me and You LOBO 5/3/71 EP 285726Corp. And A Dog (A/K/A Named Boo" Kent La Voie)T.B. Harms "Tulsa Time" Danny 9/5/78 PA 18-894Company FlowersMCA, Inc. "Orange Ervin 5/2/47 EP 14180 Ervin Thomas Blossom Thomas Registered As unpublished Rouse as Special" Rouse 10/20/38 EU 179156 "Author". Renewal date and number: 2/5/75 R 597639 3/4/66 R 381610Milene "Blue Eyes Fred 11/9/45 EP 136765 Lester FMusic, Crying in Rose Rose &Inc. The Rain" Wesley H. Rose, each as "Child ofBlendingwell "Bad, Bad James 5/16/73 EP 313304 DeceasedMusic, Inc. Leroy Brown" Croce Registered As Unpublished Author, Fredand MCA, EU 337197 Rose",Inc. 6/12/72 Renewal date and number: R 540614 11/29/72

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