MOB Music Publishing v. Zanzibar on the Waterfront, LLC
698 F. Supp. 2d 197 (2010)
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Rule of Law:
A certificate of copyright registration constitutes prima facie evidence of copyright ownership, and an individual who has the right and ability to supervise an infringing activity and a direct financial interest in it may be held vicariously liable for the copyright infringement.
Facts:
- Plaintiffs, various music publishing companies, own the copyrights to six musical compositions and granted the American Society of Composers, Authors and Publishers (ASCAP) the right to license public performances of their songs.
- Defendant Zanzibar on the Waterfront, LLC, a nightclub and restaurant, previously held a license from ASCAP to play songs from its repertory.
- ASCAP terminated Zanzibar's license on August 15, 2006, for failure to pay license fees.
- Defendant Michel L. Daley is the managing member of Zanzibar, with supervisory control over its operations and a direct financial interest in the business.
- Despite repeated offers from ASCAP to reinstate the license, Zanzibar failed to renew it.
- On November 16, 2007, an ASCAP investigator visited Zanzibar and heard five of the plaintiffs' copyrighted songs being performed.
- On February 1, 2009, a second ASCAP investigator visited Zanzibar and heard a sixth copyrighted song being performed.
Procedural Posture:
- The Plaintiffs filed a lawsuit for copyright infringement against Zanzibar on the Waterfront, LLC and Michel L. Daley in the United States District Court for the District of Columbia on September 19, 2008.
- On April 16, 2009, Plaintiffs amended their complaint to add a claim for an additional act of infringement.
- After the close of discovery, Plaintiffs filed a Motion for Summary Judgment, asking the court to rule in their favor without a full trial.
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Issue:
Does a commercial establishment and its managing member commit copyright infringement when copyrighted songs are publicly performed in the establishment without a valid performance license?
Opinions:
Majority - Sullivan
Yes. A commercial establishment and its managing member commit copyright infringement when copyrighted songs are publicly performed without a valid license. To establish infringement, a plaintiff must prove ownership of a valid copyright and an unauthorized public performance. Plaintiffs met their burden of proving ownership by submitting copyright registration certificates, which constitute prima facie evidence of validity. The defendants' arguments challenging the plaintiffs' chain of title and the 'work for hire' status of certain songs were unsupported assertions and insufficient to create a genuine issue of material fact. The unauthorized public performances were established through uncontroverted affidavits from ASCAP investigators. Furthermore, Defendant Daley is vicariously liable because he had both the right and ability to supervise the infringing activity as the managing member and derived a direct financial benefit from the establishment's operations. A supervisor's lack of knowledge of the specific infringing acts is not a defense to vicarious liability.
Analysis:
This case reinforces the strength of a copyright registration certificate as prima facie evidence of ownership, placing a high burden on defendants to rebut this presumption with concrete evidence rather than mere speculation. It also serves as a strong affirmation of vicarious liability for corporate officers in copyright infringement cases. The decision makes it clear that individuals who control and financially benefit from an establishment cannot escape personal liability by claiming ignorance or blaming independent contractors for the infringing acts, thus broadening the scope of accountability for infringement in commercial settings.
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