Broadcast Music, Inc. v. Prana Hospitality, Inc.
158 F. Supp. 3d 184
S.D.N.Y.2016Background
- BMI licenses public performance rights to a repertoire of musical works and represents the copyright-owner plaintiffs who own the songs at issue: “Suavemente,” “Billie Jean,” and “We Will Rock You.”
- Prana operates the NYC restaurant/bar “Pranna”; Rajiv and Payal Sharma are owners/officers. BMI repeatedly contacted Pranna (48 letters/emails, 42 calls, 4 visits) from 2012–2014 offering a license and later demanding cessation; defendants did not obtain a BMI license covering DJ performances.
- BMI investigators attended Pranna on May 17, 2014 and October 11, 2014, paid cover charges, and recorded DJ performances that included the three copyrighted songs.
- Defendants failed to respond to discovery requests and admissions, so many factual assertions were deemed admitted under Rule 36; they offered no sworn opposing evidence.
- Plaintiffs moved for summary judgment seeking liability, a permanent injunction against future unauthorized public performances of BMI-licensed works, statutory damages, and attorneys’ fees and costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Liability for unauthorized public performance | BMI: defendants allowed public DJ performances of BMI works without authorization, satisfying infringement elements | Defs: performances were private events or covered by a background-music license | Court: summary judgment for plaintiffs — all infringement elements satisfied (ownership, public performance for profit, no authorization) |
| Vicarious/joint liability of owner/officers | BMI: Prana and the Sharmas had right/ability to supervise and a direct financial interest, so vicarious liability attaches | Defs: DJs were independent contractors; Pranna did not control performances | Court: owners/officers jointly and severally liable despite lack of direct employment or selection control of DJs |
| Permanent injunction | BMI: repeated notices and ongoing unlicensed performances show risk of future infringement; injunction necessary and appropriate | Defs: generally opposed but raised no specific hardship or factual showing of cessation | Court: injunction granted prohibiting defendants and their agents from infringing any musical compositions licensed by BMI |
| Statutory damages and fees | BMI: requests $15,000 per work (total $45,000); seeks attorneys’ fees and costs due to willfulness and noncooperation | Defs: contested liability; claimed background license or disbelief of BMI notices | Court: awarded $12,500 per infringement (total $37,500), plus $21,751.49 fees and $612.92 costs — willfulness/reckless disregard and noncooperation supported enhanced award |
Key Cases Cited
- Gershwin Pub. Corp. v. Columbia Artists Mgmt., 443 F.2d 1159 (2d Cir. 1971) (vicarious liability where parties participate in or benefit from performances)
- Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304 (2d Cir. 1963) (venue proprietor liable for unauthorized public performances by performers)
- Sygma Photo News, Inc. v. High Society Magazine, Inc., 778 F.2d 89 (2d Cir. 1985) (persons who participate in or control infringement may be liable)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (burden on movant for summary judgment; no genuine dispute of material fact)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (summary judgment standard: materiality and genuine dispute)
- eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (U.S. 2006) (four-factor test for injunctive relief)
- Fogerty v. Fantasy, Inc., 510 U.S. 517 (U.S. 1994) (factors for awarding attorneys’ fees in copyright cases)
- Herbert v. Shanley Co., 242 U.S. 591 (U.S. 1917) (performances in establishments operated for profit satisfy profit nexus element)