IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

JOEL SONGS, EXPERIENCE HENDRIX, )

L.L.C., ET AL., )

)

PLAINTIFF, )

)

VS. ) CASE NO.: 1:06-CV-774

)

SHELLEY BROADCASTING COMPANY, )

INC., STAGE DOOR DEVELOPMENT, INC. )

AND JACK MIZELL. )

)

DEFENDANTS. )

RESPONSE TO MOTION FOR SUMMARY JUDGMENT

COMES NOW the defendants in the above styled cause by and through their undersigned

counsel and in response to plaintiff’s motion for summary judgment shows unto the Court

as follows:

STANDARD FOR SUMMARY JUDGMENT

Federal Rule of Civil Procedure 56 provides that summary judgment may be granted only

if the pleadings, supporting papers, affidavits, and admissions on file, when viewed with all

inferences in favor of the nonmoving party, demonstrate that there is no genuine issue of

material fact and that the movant is entitled to judgment as a matter of law. See also

Todaro v. Bowman, 872 F. 2d 43, 46 (3d Cir. 1989); Chipollini v. Spencer Gifts, Inc., 814

F. 2d 893, 896 (3d Cir. 1987), cert. Dism’d, 483 U.S. 1052 (1987). Put differently,

“summary judgment may be granted if the movant shows that there exists no genuine

issues of material fact that would permit a reasonable jury to find for the nonmoving

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party.” Miller v. Indiana Hospital, 843 F. 2d 139, 143 (3d Cir.), cert. Denied, 488 U.S.

870, 102 L. Ed. 2d 147, 109 S. Ct. 178 (1988). An issue is “genuine” if a reasonable jury

could possibly hold in the nonmovant’s favor with regard to that issue. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A

fact is material if it influences the outcome under the governing law. Id. At 248.

Within the framework set out above, the moving party essentially bears two burdens: first,

there is the burden of production, of making a prima facie showing that it is entitled to

summary judgment. This may be done either by demonstrating there is no genuine issue of

fact and that as a matter of law, the moving party must prevail or by demonstrating the

nonmoving party has not shown facts relating to an essential element of the issue for

which it bears the burden. Once either showing is made, this burden shifts to the

nonmoving party who must demonstrate facts supporting each element for which it bears

the burden as well as establish the existence genuine issues of material fact. Second, there

is the burden of persuasion. This burden is a stringent one which always remains with the

moving party. If there remains any doubt as to whether a trial is necessary, summary

judgment should not be granted. See Celotex Corp. v. Catrett, 477 U.S. 317, 330-33, 91

L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-

61, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Advisory Committee’s Notes on Fed. Rules

of Civ. Pro. 56 (e), 1963 Amendment; see generally C. Wright, A. Miller, & M. Kane,

Federal Practice and Procedure 2727 (2d ed. 1983). 

STATEMENT OF FACTS

Stage Door Development, Inc. and Shelley Broadcasting Company, Inc., own the Federal

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Communication Commission License for WRJM and WGEA Geneva, Alabama

respectively. The licenses are owned in the corporate names and bothare renewed every 7

years. The licensees hold the dial position basically as a public trustee. Both stations

program the News/Talk format which relies on little or no music. WGEA programs to a

very small audience in Geneva, Alabama and WRJM programs the talk format for all of

Southeast Alabama.

DISCUSSION

One constant throughout the past several years is that Stage Door Development, Inc. and

Shelley Broadcasting Company, Inc., have denied that there was any willful infringement of

copy written materials by either radio station. There is absolutely no way defendants would

wilfully infringe on copywritten material having endured two unsuccessful lawsuits.

Additionally, the tape recordings were made February 24-27, 2006, well before the outcome

of the Simpleville Music Case. The fact that the tapes were made well in advance of the

resolution of the previous case shows the intent of the Plaintiffs and in effect their “Piling on.”

All the Court has in front of it is the allegation that Stage Door Development, Inc. and

Shelley Broadcasting Company, Inc., publically performed bit s and pieces of 20 songs

(dropping one song because it was inaudible) over a period of several days. There has been

a voluminous submission of tape recordings as alleged by Plaintiff which are specious at best.

Some of the recordings propose alleged copy written songs, some are bits and pieces, but all

are included in satellite programming. There is absolutely no way Mr. Mizell or any staff

could be prescient enough to realize a copyrighted song was forthcoming making the action

wilful. Furthermore, the satellite companies (as the past pleadings reflected) have assured Mr.

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Mizell that no copyrighted material would be played.

CO-DEFENDANT MIZELL SHOULD NOT BE PERSONALLY LIABLE

 Individual defendant, Jack Mizell, is 100% owner of Shelley Broadcasting and Stage Door

Development. Both are legal entities registered in the State of Alabama. At no time have

Plaintiff’s shown to the Court that Mizell has performed duties other than those required

within the corporate structure and no proof has been given that Mizell profited from the

alleged infringement. Mizell should not be held personally liable and should be dismissed

from lawsuit. 

WILLFUL INTENT

Mizell again contends that at no time did he or his staff intend to play copyrighted

material. 

 He testified earlier that steps were taken to ensure that this did not take place. Even

though the “intention to infringe is not essential under the Copyright Act” Buck v. JewellLaSalle Realty Co., 283 U.S. 191, 198, 51 S. Ct. 410, 75 L. Ed. 971 (1931) the issue of

willful intent may effect the amount of damages available to plaintiff. Universal City

Studios, Inc. v. Sony Corp. of Americal 659.

CONCLUSION

Wherefore, premises considered, defendants respectfully request that plaintiff’s Motion for

Summary Judgment be denied as there is a genuine issue to all material facts.

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/s/ Steve McGowan

Attorney for Defendant

P.O. Box 2101

Dothan, Alabama 36302

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing has been sent via U.S. Mail,

to Dylan C. Black, Esq., Brad S. Burleson, Esq., James W. Gewin, Esq., 1 Federal Place, 1819 5th

Avenue North, Birmingham, Alabama 35203-2104 this the 28th day of February 2007.

/s/ Steve McGowan

Of Counsel

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