USDC M.D. Florida, January 6, 2009 (not for publication)

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Plaintiffs, owners of copyright in various musical compositions, sued defendant Tampa Bay Downs, Inc. (“TBD”), a pari-mutuel wagering facility, for unauthorized live performances and television broadcasts of plaintiffs’ songs. Throughout the year, TBD broadcasts various horse racing and Jai-Alai events via an extensive network of televisions, some of which may be individually rented by patrons for a fee.

In 2004, the American Society of Composers, Authors, and Publishers (“ASCAP”) learned that TBD was broadcasting its members songs through this television network, despite the fact that TBD did not have an ASCAP license to do so. ASCAP sent several letters to TBD warning of its potential infringement, but TBD did not enter into an ASCAP license. Thus, in 2006, ASCAP sent a private investigator to TBD to document unauthorized public performances of its members’ compositions. The investigator reported two types of performances: (1) music from a compact disc being broadcast through a p.a. system by Radio Disney, which was hosting an event at TBD; and (2) background music from commercials audible on the individual television rentals. Plaintiffs, whose music was played during the investigator’s visit, filed an action alleging copyright infringement against TBD and against TBD employees as individuals; TBD brought in Radio Disney as a third party defendant.

To prove infringement under the Copyright Act, a plaintiff must show (1) ownership of a valid copyright in the work; (2) public performance of the work by defendant; (3) without authorization from the plaintiff. On summary judgment, TBD contended that plaintiffs failed to show a lack of authorization for the live performances. As for the television performances, TBD argued that those broadcasts did not constitute “public” performances under the second prong.

Under the Copyright Act, a business owner who hires a musician or disc jockey may be subject to vicarious liability under certain circumstances. However, vicarious liability cannot be found in the absence of direct infringement. TBD argued that plaintiffs failed to show that Radio Disney – here, the direct infringer – was not authorized to publicly perform the songs on the p.a. system. Plaintiffs had asserted that the compact disc music was unrelated to Radio Disney’s over-the-air broadcast or simulcast transmission of that signal, which was the only transmissions covered by Radio Disney’s ASCAP license. TBD insisted that plaintiffs had offered no evidence to show that the license itself did not cover the live performance in question.

The Court held that plaintiffs met their initial burden of proof in showing Radio Disney performed the songs without authorization, and that, as a result, the burden shifted to TBD to show Radio Disney had the requisite ASCAP license. The Court found that TBD had failed in this burden despite sufficient investigation time. The Court also emphasized that TBD had failed to plead “license” as an affirmative defense. Thus, because “authorization” was the only disputed issue, the Court granted summary judgment against TBD on the issue of infringement.

Plaintiffs also sought summary judgment on the infringement claims relating to the music broadcast via rented televisions, which were housed in partially enclosed carrels. TBD disagreed that these broadcasts qualified as “public performance” under the Copyright Act, which categorizes three types of public performances – a place open to the public; a semi-public place; and transmission by means of device or process. The Court found that TBD unquestionably qualified as open to the public. Additionally, it emphasized that the individual nature of the carrels did not remove the “public” character of the performance because the carrels were not fully enclosed and the volume could be turned up loud enough to be heard by patrons outside the carrel.

Finally, the Court rejected TBD’s argument that it was entitled to the “home-system” defense, which exempts a transmission stemming from an apparatus commonly used in private homes unless (1) there is a direct charge to view or hear the transmission and (2) the transmission is further transmitted to the public. The Court found that TBD was not entitled to this defense because there was a direct charge for the television carrels and because TBD transmitted the television signal to numerous televisions throughout its premises.