United States District Court, D. Massachusetts
BROADCAST MUSIC, INC.; SONY/ATV SONGS LLC d/b/a SONY/ATV TREE PUBLISHING VELVET APPLE MUSIC; WARNER-TAMERLANE PUBLISHING CORP.; CYANIDE PUBLISHING; RATT MUSIC; TIME COAST MUSIC; RIGHTSONG MUSIC, INC.; SHIRLEY EIKHARD USA MUSIC; EMI BLACKWOOD MUSIC INC.; TOKECO TUNES; WACISSA RIVER MUSIC; UNIVERSAL-SONGS OF POLYGRAM INTERNATIONAL, INC.; FUEL PUBLISHING INC. d/b/a PENER PIG PUBLISHING SONGS OF UNIVERSAL, INC.; and ESCATAWPA SONGS, Plaintiffs,
C.B.G., INC., d/b/a BEEMERS PUB RESTAURANT & LOUNGE, MARRIE ROSE COTE, and PETER C. COTE, each individually, Defendants.
FINDING AND ORDER
ON PLAINTIFFS' MOTION FOR FEES AND COSTS
TIMOTHY S. HILLMAN, District Judge.
Plaintiff Broadcast Music, Inc. ("BMI") is a non-profit "performing rights society" that licenses the right to publically perform copyrighted musical works on behalf of the owners of those works. BMI acquires performance rights from owners and then grants music users (such as restaurant owners) the right to publically perform works in BMI's collection through blanket license agreements. BMI distributes all income after deducting operating expenses to the owners of the musical works. The other plaintiffs are the owners of the copyrights in the musical compositions at issue in this case. Defendant C.B.G., Inc. ("CBG") owns, operates and controls Beemer's Pub in Fitchburg, Massachusetts. Defendant Peter Cote is the treasurer and sole director of CBG and has responsibility for operation and management of the corporation and Beemer's Pub.
Sometime before March 24, 2010, BMI discovered that CBG was holding public performances of music from BMI's collection without BMI's permission or license to do so. BMI sent a letter to the defendant explaining that a license was required to publically perform BMI music. BMI sent an additional 34 letters and many emails over the next 14 months also informing CBG of the potential for copyright infringement. The plaintiff made approximately 47 phone calls to CBG to explain the necessity for a license. On six of these phone calls, BMI spoke to Cote personally on the subject. By April 2011, Beemer's still did not have a license. BMI sent a representative to observe the pub on the night on April 26-27; eight songs were performed without a license. As a result, plaintiff sent a letter on May 10, informing CBG of the investigation and to give CBG another chance to obtain the license. The defendant did not do so. After filing suit, the plaintiff sent another investigator to Beemer's on October 19, 2012. The investigator observed six songs performed that required a license by BMI to perform. At that point, CBG was still unlicensed. CBG is presently licensed by BMI. Plaintiffs filed suit alleging copyright infringement against CBG and Cote on June 20, 2011. Plaintiff's motion for summary judgment was granted. BMI made a motion for attorney's fees, and defendant submitted an opposition to granting attorney's fees.
A plaintiff is entitled to attorney's fees under 17 U.S.C. § 505 when a defendant is found liable for copyright infringement. Fogerty v. Fantasy, Inc. , 114 S.Ct. 1023 (1994). The general rule from Fogerty is that, when exercising its discretion to award fees, the court should consider several nonexclusive factors. These factors include, (1) frivolousness; (2) motivation; (3) objective unreasonableness (both in factual and in the legal components of the case); and (4) the need in particular circumstances to advance the considerations of compensation and deterrence. Fogerty at footnoot 19. When awarding fees, the court must remain faithful to purposes of the Copyright Act. The goals of the Act include securing a fair return on the author's creating labor and the stimulation of artistic creativity. Broadcast Music Inc. v. McDade & Sons, Inc. , 928 F.Supp.2d 1120 (D. AZ 2013). (quoting Fogerty).
Generally, courts have held that a copyright lawsuit was frivolous if they are so meritless that there is little chance of success on the claim. Garcia-Goyco v. Law Envtl. Consultants, Inc. , 428 F.3d 14 (1st cir. 2005). Applied Innovations, Inc. v. Regents of the University of Minnesota , 876 F.2d 626 (8th cir. 1989). In this case, the defenses advanced by the defendant, while imaginative, were simply not meritorious.
Whether the case was brought or continued in bad faith is especially important when considering the motivation of the parties. For example, if the case is brought solely to harass the other party, this would qualify as improper motive, likely justifying an award of attorney's fees. ZilYen, Inc. v. Rubber Mfrs. Ass'n , 958 F.Supp.2d 215 (DC 2013). BMI does not contend that CBG proceeded with improper motives. There is no evidence that the settlement negotiations were conducted for any reason other than to avoid going to court and promoting judicial economy. Lacking any specific and concrete evidence, I find that the defendant's motivations were not improper.
c. Objectively Unreasonable
The First Circuit has held that an award of attorney's fees is permitted where the nonprevailing party's claims are objectively weak, although the court is not required to do so. Latin Am. Music Co. v. Am. Soc'y of Composers, Authors, and Publishers , 642 F.3d 87 (1st cir. 2011). Airframe Systems, Inc. v. L-3 Communications Corp. , 658 F.3d 100 (1st cir. 2011).
In this case, it is very unlikely that the court would have come to a different outcome. The plaintiff points to a number of reasons, taken from the summary judgment order of this court, for why the defendant's position was frivolous. Here, the evidence of the defendant's copyright infringement was ...