Broadcast Music, Inc. v. DK 547, LLC

Copyright infringement of a musical work was shown by proving a public performance, originality and authorship of work, a valid copyright under Copyright Act, claimant’s ownership of work at issue, defendant’s public performance of work, and defendant’s failure to obtain claimant’s permission for such a performance. Joint and several liability for copyright infringement for a corporate officer was determined because the officer had the right and ability to supervise the activity and direct financial interest in the infringement.

Opinion (King): Broadcast Music, Inc. (“BMI”) is a “performing rights society” that licenses the right to publicly perform copyrighted musical works on behalf of the copyright owners. Prior to 2009, BMI learned that DK 547, LLC (“DK”) and its owner Dimo Kuzmanovski (“Kuzmanovski”) were offering musical entertainment in their establishment, Classic Sports Bar, without a license from BMI. Having received no response from DK or Kuzmanovski after repeated letters, and confirming that DK publicly performed copyrighted works, BMI filed a suit for copyright infringement against DK and Kuzmanovski, as a corporate officer of DK and moved for for summary judgment. In order to establish a claim for copyright infringement of a musical work via public performance, a claimant must prove: (1) originality and authorship of work; (2) a valid copyright under Copyright Act; (3) claimant’s ownership of work at issue; (4) defendant’s public performance of work; and (5) defendant’s failure to obtain claimant’s permission for such a performance. The court found the factors of originality and authorship, valid copyright and ownership of the work at issue satisfied based on detailed records from BMI providing evidence of registration for the works. BMI’s two Certified Infringement Reports, detailing the experiences of two BMI investigators at DK’s establishment, were found to be sufficient evidence for the public performance element. DK’s lack of a license from BMI for performance of the copyrighted works satisfies the failure to obtain permission element. The two-prong test to determine if a corporate officer is jointly and severally liable for the acts of the corporation requires the officer to possess the right and ability to supervise the infringing activity, and a direct financial interest in such activities. The court found, based on his own admissions, that Kuzmanovski is vicariously liable for DK’s infringement. The court GRANTED BMI’s motion for summary judgment, including the award of a permanent injunction against DK, statutory damages, and BMI’s attorney’s fees and court costs.