OPINION AND ORDER
Plaintiffs Latin American Music Company, Inc. (“LAMCO”) and Asociación de Compositores y Editores de Música Lati-noamericana de Puerto Rico, Inc. (“ACEMLA”) bring this action for copyright infringement against Defendant Spanish Broadcasting System, Inc. (“SBS”).
I. Background
A. Facts
Plaintiff LAMCO is a music publisher that administers copyrighted musical works of Puerto Rican and foreign composers; Plaintiff ACEMLA is an organization that licenses performance rights to musical works; and Defendant SBS is a radio broadcaster that owns and operates commercial radio and television stations across the United States and Puerto Rico.
1. Disputes Over Ownership
As to seven of the songs addressed by Defendant’s motion—Abuelita, Aguanile, Ausencia, Mi Gente, Soy Sensacional, Mantecadüo, and Arroz con Bacalao—the parties dispute whether Plaintiffs currently own the rights to these songs. However, there is no dispute that one of two entities other than Plaintiffs—Fania Publishing Co., Inc. (“Fania Publishing”) or Fania Records, Co. (“Fania Records”)—registered copyrights 'for each of these songs in the 1970s, decades before any purported transfer of copyright ownership to Plaintiffs. (Def. 56.1 ¶ 59.) For convenience, the Court will refer to these seven songs as the “Fania Works.”
In 1970 and 1971, Fania Publishing registered Abuelita, Aguanile, and Ausencia with the Copyright Office. (Def. 56.1 ¶¶ 8, 18, 17.) The registration certificate for each of these songs identifies Willie Colon and Hector Perez (sometimes under his pseudonym, Hector Lavoe) as the co-authors. (Id. ¶¶ 9,14,18.)
Decades later, in 1999 and 2000, Plaintiffs recorded agreements pursuant to which one of Hector Lavoe’s heirs purportedly transferred the rights in Abuelita, Aguanile, and Ausencia to Plaintiffs. (Def. 56.1 ¶ 61; Pl. Counter 56.1 ¶ 6.) Also in 1999, Plaintiffs registered copyrights for these three songs. (Pl. Counter 56.1 ¶ 7.)
b.Mi Gente
In 1975, Fania Publishing registered Mi Gente with the Copyright Office. (Def. 56.1 ¶ 21.) The registration certificate lists “Johnny Pacheco” as the author of the work. (Id. ¶ 22.)
Plaintiffs’ alleged ownership of the rights to Mi Gente stems from the same agreements with the Lavoe heir discussed above. (Def. 56.1 ¶ 61; Pl. Counter 56.1 116.) Plaintiffs recorded these agreements in 1999 and 2000, naming Hector Lavoe as the author of Mi Gente instead of Pacheco. (Def. 56.1 ¶ 63; Pl. Counter 56.1 ¶ 6.) As of Plaintiffs’ response to Defendant’s 56.1 statement, Plaintiffs’ application to register Mi Gente remains pending. (Def. 56.1 ¶ 65.)
c.Soy Sensacional and Mantecadito
In 1973, Fania Records registered Hom-my—a Latin opera that includes both Soy Sensacional and Mantecadito with the Copyright Office. (Def. 56.1 ¶¶ 27-28.) The registration certificate lists “Larry Kahn a/k/a Larry Harlow” and “Jenaro Alvarez a/k/a Heny Alvarez” as the co-authors of the work. (Id. ¶ 29.) In the same year, Fania Records registered Soy Sensacional and Mantecadito individually with the Copyright Office. (Id. ¶¶ 31, 33.)
In 1996, Plaintiffs recorded with the Copyright Office agreements between themselves and “Jenaro Alvarez Dome-nech,” pursuant to which Plaintiffs purportedly obtained rights to a number of Jenaro Alvarez Domenech’s songs, including Soy Sensacional and Mantecadito. (Pl. Counter 56.1 ¶ 1.) In 2003, Plaintiffs registered copyrights to Soy Sensacional and Mantecadito, listing only Jenaro Alvarez Domenech as the author. (Def. 56.1 ¶ 66; Pl. Counter 56.1 ¶ 2.)
d.Arroz con Bacalao
In 1979, Fania Publishing registered Ar-roz con Bacalao with the Copyright Office. (Def. 56.1 ¶ 39.) The registration certificate lists “Johnny Alvarez” as the author of the work and indicates that Fania Publishing obtained ownership of the copyright via a songwriter’s agreement with Alvarez. (Id. ¶ 40—41.)
In 2003, Plaintiffs recorded purported transfers of Arroz con Bacalao from “Je-naro Alvarez Domenech” (also listed as “Genaro Alvarez Domenech” and “Jenaro Heny Alvarez”). (Pl. Counter 56.1 ¶ 3.) The same year, Plaintiffs registered a copyright in Arroz con Bacalao', the certificate lists Jenaro Heny Alvarez as author. (Id. ¶ 4.)
2. Alleged Infringing Activity
The parties also dispute whether there is any evidence that Defendant infringed four of the Fania Works—Ausencia, Soy Sensacional, Mantecadito, and Arroz con Bacalao—along with three other songs— Aniversario, La Malanga a/k/a La Malan-ga Brava, and Chumalacantela / Maqui-nolandera. Plaintiffs allege that Defendant’s radio stations played these songs, relying exclusively on the personal recollection of their president, Raul Bernard,
In connection with my personal investigation of SBS in advance of filing the present lawsuit, I listened to SBS stations in an effort to determine whether SBS was broadcasting songs that were part of ACEMLA’s catalog. Paragraph 23 of the Third Amended Complaint in this case lists the dates, times, and SBS stations on which I heard the songs at issue in this lawsuit performed.
(Doc. No. 122, Bernard Decl. ¶ 12.) Paragraph 23 of the third amended complaint in turn sets forth a list of the radio broadcasts Bernard recalls, identifying the specific dates, times, and radio stations for each. (Doc. No. 24, Third Am. Compl. ¶ 23.) Bernard’s recollections are not supported by any documentary evidence in the record; although Plaintiffs previously represented to Defendant that they possessed audio recordings of the alleged unauthorized broadcasts, no such recordings were produced during discovery. (Def. 56.1 ¶ 74-75.)
B. Procedural History
Plaintiffs initiated this action on March 7, 2013. (Doc. No. 1.) On September 23, 2015, the Court denied a motion for partial summary judgment by Defendant, which was based on a limited discovery record, finding that genuine issues of material fact existed as to Defendant’s contention that it had valid licenses to play the songs at issue. (Doc. No. 78.) The parties completed discovery on March 1, 2016. (Doc. No. 83.)
On April 22, 2016, Defendant filed the instant motion for partial summary judgment, in which Defendant argues that (1) Plaintiffs cannot prove infringement of the Fania Works because they cannot prove their ownership of the works and because Defendant possessed valid licenses to perform these songs, (2) Plaintiffs have not introduced any evidence of infringement of certain songs, (3) Plaintiffs are limited to statutory damages, and (4) Defendant qualifies as an “innocent infringer.” (Doc. Nos. 98, 114.) The motion was fully briefed as of June 9, 2016. (Doc. No. 127.)
II. Legal Standakd
Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment should be rendered “if the movant shows that there is no genuine dispute as to any material ■ fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). There is “no genuine dispute as to any material fact” where (1) the parties agree on all facts (that is, there are no disputed facts); (2) the parties disagree on some or all facts, but a reasonable fact-finder could never accept the nonmoving party’s version of the facts (that is, there are no genuinely disputed facts), see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
In determining whether a fact is genuinely disputed, the court “is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.” Weyant v. Okst,
III. Discussion
A. Failure to Establish Ownership of the Fania Works
Defendant argues that, because Plaintiffs’ infringement claims as to the Fania Works depend on assertions of ownership that are time-barred, Plaintiffs’ corresponding infringement claims fail as a matter of law. (Mem. at 11-12; Reply at 3-4.) The Court agrees.
To maintain an action for copyright infringement, “a plaintiff must establish ‘(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.’ ” Kwan v. Schlein,
A copyright registration certificate “put[s] the world on constructive notice” of the facts stated in the certificate, including ownership of the copyright. Complex Sys., Inc. v. ABN Ambro Bank N.V.,
Here, there is no dispute that one of two entities other than Plaintiffs—Fania Publishing or Fania Records—registered copyrights for each of the Fania Works in the 1970s, decades before any purported transfer of copyright ownership to Plaintiffs. (Def. 56.1 ¶ 59.) Thus, whether the three-year statute of limitations began to run in the 1970s, when the songs at issue were first registered by a Fania entity, or in the late 1990s and early 2000s, when Plaintiffs filed their own registrations for the same works, Plaintiffs’ ownership claims to the Fania Works were clearly time-barred by the time Plaintiffs commenced this action in 2013. Accordingly, since “a time-barred ownership claim will bar a claim for copyright infringement where ... the infringement claim cannot be decided without adjudication of a genuine dispute as to the plaintiffs ownership of the copyright,” Kwan,
B. Evidence of Infringement
Defendant also argues that it is entitled to summary judgment on Plaintiffs’ infringement claims as to three other songs at issue in this litigation—Aniversario, La Malanga a/k/a La Malanga Brava, and Chumalacantela/Maquinolandera—on the ground that there is no admissible evidence that these works were actually played by Defendant.
As noted above, Plaintiffs’ president Raul Bernard has submitted a declaration stating under penalty of perjury that he heard the aforementioned songs played on Defendant’s radio stations. (Doc. No. 122, Bernard Decl. ¶ 12.) Defendant argues that this testimony is not “legally sufficient” because Bernard has an interest in the litigation. (Reply at 8.) But the authority cited by Defendant for this proposition—Broadcast Music v. Havana Madrid Restaurant Corp.,
The Court also declines to find that Plaintiffs have admitted the absence of infringement by failing to respond to Defendant’s request for such an admission served pursuant to Federal Rule of Civil Procedure 36. While it is true that, under the rule, “[a] matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection,” Fed. R. Civ. P. 36(a)(3), the rule also allows the Court to permit the withdrawal or amendment of an admission if (1) “it would promote the presentation of the merits of the action,” and (2) “if the court is not persuaded that it would prejudice” the party who requested the admission, id. R. 36(b). In light of the facts that (1) Plaintiffs’ principal has offered a declaration that directly contradicts the admission sought by Defendant, (2) Plaintiffs’ counsel denies having ever received the requests for admission (Doc. No. 121, Tal-cott Decl. ¶4), and (3) Defendant never asked the Court to compel a response to the requests during the discovery period when the issue could have been addressed in accordance with Rule 2.G of the Court’s Individual Rules and Practices, the Court declines to find that Plaintiffs have admitted the absence of infringement for purposes of summary judgment.
Accordingly, since Bernard’s testimony constitutes at least some evidence that Defendant played the songs at issue, the Court finds that Plaintiffs have introduced sufficient evidence of infringing activity to defeat summary judgment on this issue. Defendant’s additional challenges to Bernard’s testimony—such as the absence of notes or other documents corroborating Bernard’s recollection (Reply at 8)—go to the weight of Bernard’s testimony and are thus more appropriately raised at trial on cross examination.
C. Statutory Damages Versus Actual Damages
With respect to all of Plaintiffs’ infringement claims alleged in the third amended complaint, the Court finds that Plaintiffs have elected statutory damages in lieu of actual, damages by failing to introduce any evidence of actual damages. Pursuant to the Copyright Act:
the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just.
17 U.S.C. § 504(c)(1). Although this election “may be made at any time before final judgment is rendered, once a plaintiff elects statutory damages he may no longer seek actual damages.” Latin Am. Music Co. v. Spanish Broad. Sys., Inc.,
Defendant argues that Plaintiffs made an “irreversible” election of statutory damages by indicating in their January 10, 2014 initial disclosures that they would seek “statutory damages” (with no mention of actual damages). (Mem. at 20 (citing Def. 56.1 ¶ 78).) Although Plaintiffs “corrected” this disclosure a mere five days later (see Doc. No. 117-6, Fitzpatrick Decl. Ex. 6), Defendant argues that this purported correction was “void because Plaintiffs cannot reverse their prior election for statutory damages.” (Mem. at 20-21.) None of the authority cited by Defendant supports a rule so strict that it would bar a plaintiff from recovering actual damages due to an election made in initial disclosures and corrected days later, particularly where Defendant has not articulated any prejudice. Rather, the closest examples cited by Defendant involve elections made much later in litigation. See Marano v. Aaboe, No. 05-cv-9375 (BSJ) (RLE),
Nevertheless, Plaintiffs’ failure to introduce any evidence of actual damages is a de facto election of statutory damages. See Latin Am. Music Co.,
D. Innocent Infringer
Defendant also renews the argument from its last motion for summary judgment that, even if it did infringe Plaintiffs’ copyrights, it is an “innocent infringer.” (Mem. at 23-25; Reply at 10.) Under the Copyright Act, when an “infringer sustains the burden of proving ... that [it] was not aware and had no reason to believe that [its conduct] constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.” 17 U.S.C. § 504(c)(2). “[E]ven for an innocent defendant,” however, “the court may still choose to award damages up to the [statutory] maximum amount.” 5 Nim-mer on Copyright § 14.04(B)(2)(a).
As explained in the Court’s September 23, 2015 summary judgment opinion, it is the defendant’s burden to establish that its infringement was innocent. D.C. Comics, Inc. v. Mini Gift Shop,
It is plain that “willfully” infringing and “innocent intent” are not the converse of one another. Thus, it is possible in the same action for a plaintiff not to be able to prove a defendant’s willfulness, and, at the same time, for the defendant to be unable to show that it acted innocent-iy-
Fitzgerald Publ’g Co. v. Baylor Publ’g Co.,
Here, Defendant essentially argues that, because the Court’s September 23 opinion held that Defendant possessed valid licenses from BMI and ASCAP (see Doc. No. 78 at 6), Defendant is protected as an innocent infringer. But Defendant appears to ignore the Court’s determination in the same opinion that it was unable to conclude whether Defendant was an innocent infringer without a fuller record. (Id. at 9.) On the instant motion, Defendant points to no additional evidence that would satisfy Defendant’s burden to establish its subjective good faith and objective reasonableness. See 5 Nimmer on Copyright § 14.04(B)(2)(a). Indeed, although the Court’s September 23 opinion noted that “evidence of the BMI and ASCAP website listings at the time of the alleged infringement is likely to go a long way towards establishing Defendant’s innocent infringement defense with respect to damages” (Doc. No. 78 at 9), Defendant’s motion identifies no evidence in the record regarding listings on the BMI and ASCAP websites. Accordingly, since this is an affirmative defense that Defendant must prove, the Court again rejects Defendant’s innocent infringer defense for lack of evidence.
IV. Conclusion
For the reasons set forth above, IT IS HEREBY ORDERED THAT Defendant’s
Pursuant to the parties’ election in the October 13, 2015 case management plan and scheduling order, this case is to be tried by the Court. (Doc. No. 83.) IT IS FURTHER ORDERED THAT a bench trial in this matter shall commence on Monday, April 17, 2017 at 9:30 a.m. in Courtroom 905 of the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, New York. Trial shall begin with the testimony of Raul Bernard. The Court will set deadlines for pretrial submissions in a forthcoming order.
SO ORDERED.
Notes
. By order dated June 17, 2014, the Court dismissed all claims against Defendant Raul Alarcon, Jr. (Doc. No. 44.)
. The facts herein are drawn from the parties’ Local Civil Rule 56.1 statements. (Doc. No. 115 ("Def. 56.1”); Doc. No. 123 ("PL Counter 56,1”).) Unless otherwise noted, where only one party’s 56.1 statement is cited, the other party does not dispute the fact asserted, has offered no admissible evidence to refute that fact, or merely objects to inferences drawn from that fact. In resolving Defendant’s motion, the Court has also considered Defendant's memorandum of law in support of its motion (Doc. No. 116 ("Mem.”)), Plaintiffs’ memorandum of law in opposition (Doc. No. 124 ("Opp’n”)), Defendant’s reply brief (Doc. No. 127 ("Reply”)), and the documents submitted in support thereof.
. Because the Court finds that Plaintiffs' infringement claims are barred as a matter of law, it does not reach Defendant's alternative arguments for dismissal of those claims, in-eluding that Plaintiffs have submitted insufficient evidence of their ownership of the Fania Works and that Defendant possessed valid licenses to perform those works.
. As noted above, Defendant also argues that there is no admissible evidence that it played four of the Fania Works: Ausencia, Soy Sen-sacional, Mantecadito; and Arroz con Bacalao. However, the Court need not address that argument in light of its dismissal of Plaintiffs’ infringement claims as to those songs.
. Of course, the lack of notes supporting the details of radio plays alleged in the third amended complaint (and affirmed by Bernard under penalty of perjury)—including specific dates, radio stations, and to-the-minute times of thirteen radio broadcasts (see Doc. No. 24, Third Am. Compl. ¶ 23)—would require near-photographic memory on the part of Bernard. Therefore, unless Bernard takes the stand and demonstrates savant-like abilities of recall, it is doubtful that a finder of fact will credit Bernard’s testimony regarding when he heard the songs at issue played on Defendant’s radio stations.