1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

SOUTHERN DIVISION

JOELSONGS, et al., 

 Plaintiffs, 

v. 

SHELLEY BROADCASTING 

COMPANY, INC., et al., 

 Defendants. 

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CIVIL ACTION NO. 

1:06CV774-MHT 

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ 

 MOTION FOR SUMMARY JUDGMENT 

Plaintiffs submit this memorandum in support of their motion, pursuant to Fed. R. Civ. P. 

56, for summary judgment adjudging defendants Shelley Broadcasting Company, Inc., Stage 

Door Development, Inc., and H. Jack Mizell as infringers under the Copyright Law. 

I. PRELIMINARY STATEMENT

This is the third action by copyright owners and members of the American Society of 

Composers, Authors and Publishers (“ASCAP”) against defendants Shelley Broadcasting 

Company, Inc., Stage Door Development, Inc. and H. Jack Mizell for willful copyright 

infringement by unauthorized public performance of plaintiffs’ copyrighted musical 

compositions. In this case, as in the previous two cases, the infringements occurred by broadcast 

over radio stations owned and operated by defendants. As the Court may recall, the first such 

case, Bencap, Inc. et al. v Shelley Broadacasting Company Inc., et al., Civil Action No. CV-93-

A-696 (filed June 7, 1993), resulted in the entry of a Consent Judgment. In the second case, 

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Simpleville Music et al. v. H. Jack Mizell, Case Number 1:04cv393-T (filed April 23, 2004), the 

Court entered a summary judgment against Mizell on September 14, 2006.1

 See 451 F. Supp. 2d 

1293 (M.D. Ala. 2006). 

Following its decision in September, in which the Court awarded plaintiffs $11,250 in 

statutory damages and instructed plaintiffs to file their request for attorneys’ fees and costs, 

Plaintiffs’ submitted their initial motion for attorneys’ fees and costs on September 28, 2006, and 

subsequently submitted supplemental requests for additional attorneys’ fees as they continued to 

accrue for work performed after that date. Mizell appealed the Court’s decision to the Eleventh 

Circuit on November 3, 2006, but his appeal was dismissed on December 28, 2006 because 

Mizell failed to file his brief and record excerpts within the time period prescribed by the 

appellate court. Plaintiffs’ motion for attorneys’ fees and costs in the Simpleville Music action, 

now totaling $91,466.36, remains pending before the Court, and no portion of the existing 

judgment in that case has been paid. 

 The infringing performances on which this case is based occurred by broadcast over 

radio station WGEA, licensed by the Federal Communications Commission to operate in 

Geneva, Alabama, on February 25 and 27, 2006; and by broadcast over WRJM-FM, also 

licensed by the Federal Communications Commission to operate in Geneva, Alabama, on 

February 24, 25 and 26, 2006, all dates on which defendants owned, operated and controlled 

both radio stations. 

 1 Earlier, the court had entered a default judgment against Shelley Broadcasting and Stage Door 

Development in the amount of $48,000 when no attorney appeared to represent those defendants. That judgment 

has not been paid.

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Among the many copyrighted songs publicly performed by defendants’ radio stations are 

the 20 songs2

 on which this action is based: “WE DIDN’T START THE FIRE,” “LITTLE 

WING,” “HEY THERE,” “BEGIN THE BEGUINE,” “PINK HOUSES,” “PANAMA,” “THIS 

WILL BE (AN EVERLASTING LOVE),” “RASPBERRY BERET,” “FAITH,” “MASTER OF 

PUPPETS,” “LITTLE RED CORVETTE,” “LIGHT MY FIRE,” “BIG YELLOW TAXI,” 

“JUMP,” “RIKKI, DON’T LOSE THAT NUMBER,” “GOD WILL MAKE A WAY,” “SINCE I 

DON’T HAVE YOU,” “WE HAVE COME INTO HIS HOUSE (TO WORSHIP HIM),” 

“SMALL TOWN” and “1999.” 

Plaintiffs are, of course, members of ASCAP. They own the copyrights in the songs 

listed above and seek remedies provided by the U.S. Copyright Law (17 U.S.C. §§ 502(a), 

504(c), and 505 (1976)): (1) an injunction prohibiting further infringing performances of any 

copyrighted musical compositions in the ASCAP repertory; (2) statutory damages in the amount 

of $5,000 in each cause of action; and (3) costs, including reasonable attorneys’ fees. 

Defendants were fully aware of their obligation to obtain permission to perform 

plaintiffs’ songs -- either by license from ASCAP or directly from ASCAP’s members -- and had 

no such permission when the infringing performances occurred. In fact, since August 8, 2003, 

when ASCAP terminated the licenses previously in effect for radio stations WGEA and WRJMFM for breach and default, the two radio stations have not been authorized to perform 

copyrighted musical compositions in the ASCAP repertory. (See Affidavit of Pamela Blank, 

¶ 9). Despite repeated communications from ASCAP representatives informing defendants of 

 2 The complaint alleges 21 counts of infringement. Plaintiffs are dropping the count based on the song 

“Anotherloverholenyohead” (Count 8 on Schedule A to the Complaint) because the performance of the song is 

inaudible on plaintiffs’ tape recordings of defendants’ broadcasts.

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their liability under the United States Copyright Law, and despite pending litigation against 

defendants for copyright infringement, they continued to perform copyrighted music without 

permission during the hours that the two radio stations were on the air. As a result, plaintiffs 

filed this third action for willful copyright infringement. 

II. NARRATIVE STATEMENT OF UNDISPUTED FACTS

The following undisputed facts are derived from the pleadings; documentary evidence; 

Mr. Mizell’s statements under oath; and uncontroverted affidavit testimony. 

A. PROOF OF PLAINTIFFS’ COPYRIGHT OWNERSHIP

Plaintiffs own valid copyrights in the songs in suit. To establish this fact, plaintiffs are 

submitting with their motion true and correct copies of the copyright registration certificates. 

These copies are attached as exhibits to the Affidavit of Mary Jenkins. Ms. Jenkins is the 

ASCAP employee in charge of maintaining pertinent copyright records generally, and 

specifically, copyright registration certificates, assignments and other documents which 

demonstrate copyright ownership of songs involved in actions such as the case at bar. (Jenkins 

Aff., ¶ 2). Attached to Ms. Jenkins’ affidavit are copies of the copyright registration certificates 

and other relevant documents pertaining to the 20 songs in suit. (Id., Exhibits A-G, I-U) . The 

evidence of copyright ownership is uncontroverted; Mr. Mizell has admitted as much by failing 

to respond to plaintiffs’ requests for admissions, which are deemed admitted. (See Plaintiffs’ 

Requests for Admissions, nos. 9-12; Fed. R. Civ. P. 36(a)).3

 3 Under Fed. R. Civ. P. 36(a), Mizell’s failure to respond to plaintiffs’ Requests for Admissions means that 

the matters set forth in the Requests are deemed admitted. Such admissions have been held sufficient to support a 

motion for summary judgment in virtually identical ASCAP-assisted infringement cases. See, e.g., Nick-O-Val 

Music Co., Inc. v. P.O.S. Radio, Inc., 656 F. Supp. 826, 827-28 (M.D. Fla. 1987); Milene Music, Inc. v. Gotauco, 

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B. PROOF OF DEFENDANTS’ INTENTIONAL CONDUCT

Not only did defendants lack permission to perform plaintiffs copyrighted works by radio 

broadcast, defendants’ infringing conduct was willful. It is uncontroverted that defendants 

lacked permission – whether by an ASCAP license or otherwise – to perform plaintiffs’ 

copyrighted works on the dates in question. (See Defendants’ Answers to Interrogatories, nos. 

26, 36; Plaintiffs’ Requests for Admission, nos. 13-14; Fed. R. Civ. P. 36(a); Mizell Dep., p. 118, 

line 22 – p. 119, line 11; Blank Aff., ¶¶ 9, 26).4

 The facts establishing defendants’ willfulness 

are recounted in the affidavit of Pamela Blank, an Account Manager in ASCAP’s Broadcast 

Licensing Department. Briefly, the facts are that before this lawsuit was filed (indeed, before the 

second infringement action against the defendants had been filed) ASCAP repeatedly offered 

defendants an ASCAP license agreement which would have permitted defendants to play 

plaintiffs’ copyrighted works legally and informed defendants of the risk that their conduct 

would violate the Copyright Law. Nevertheless, defendants consistently refused ASCAP’s 

offers of a license but continued their infringing conduct. Defendants also rejected all attempts 

to resolve ASCAP’s members infringement claims without litigation. (Blank Aff., ¶¶ 11-28). 

The fact of the prior litigation by ASCAP members against defendants further alerted defendants 

to the requirements of the Copyright Law and the potential consequences when that law is 

violated. (See id. at ¶¶ 14, 30). Stated simply, defendants -- sued twice previously by other 

members of ASCAP -- chose again to violate the Copyright Law by failing either to take the 

steps required to reinstate their ASCAP licenses or to seek permission directly from ASCAP’s 

 

551 F. Supp. 1288, 1292 (D.R.I. 1982); Shapiro, Bernstein and Co., Inc. v. Log Cabin Club Ass’n., 365 F. Supp. 

325, 327 (N.D.W. Va. 1973). 

4 All citations to the Mizell deposition and the Blank affidavit are references to the Mizell deposition taken 

in the Simpleville Music action and the Blank affidavit submitted in support of plaintiffs’ summary judgment 

motion in that action.

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members to perform ASCAP’s members’ music by broadcast over radio stations WGEA and 

WRJM-FM. (See id. & ¶¶ 11-28). 

The evidence that defendants knew – before the dates of the infringing performances on 

which this action is based – that ASCAP members own copyrights to many musical selections of 

the type routinely broadcast over the Stations, and that unauthorized performance of such 

copyrighted musical compositions constitutes copyright infringement under the United States 

Copyright Law is uncontroverted, and defendants have admitted as much. (See Plaintiffs’ 

Requests for Admissions, nos. 19-24; Fed. R. Civ. P. 36(a); Mizell Dep., p. 111, lines 12-17; p. 

119, line 3 – p. 120, line 13). 

The Blank affidavit includes the license agreements previously in effect between ASCAP 

and defendants -- the same licenses held by thousands of radio stations throughout the United 

States. (See id. at ¶ 20 & Exhibit A). The terms of these licenses were determined to be 

reasonable by a federal judge. (See id.). The Blank affidavit also demonstrates that if 

defendants were properly licensed by ASCAP to date for radio stations WGEA and WRJM-FM, 

they would have paid approximately $8,600 in license fees. (Id. at ¶ 31). 

C. PROOF OF DEFENDANTS’ JOINT LIABILITY 

The three defendants are, of course, intimately related. The individual defendant, H. Jack 

Mizell, is, and was at the time of the infringing performances, the president, sole officer, and 

100% owner of defendants Shelley Broadcasting Company, Inc. and Stage Door Development, 

Inc. (Defendants’ Answers to Interrogatories, nos. 8-9; Mizell Dep. pp. 21, 23, 32-33). Shelley 

Broadcasting Company, Inc. owns radio station WGEA, and is licensed by the Federal 

Communications Commission as such. (Mizell Dep., p. 32, lines 17-21). Stage Door 

Development, Inc. owns radio station WRJM. (Mizell Dep., p. 32, lines 12-16). Mizell is the 

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manager and sole employee of WRJM. (Defendants’ Answers to Interrogatories, nos. 11, 14). 

While Shelley Broadcasting Company employs a “manager” for radio station WGEA, Mizell 

maintains sole authority to hire and fire employees at both stations, owns 100% of the 

corporations that own the stations, operates both stations for profit, and has a financial interest in 

the operation of the stations. (Defendants’ Answers to Interrogatories, nos. 10, 13, 19; Mizell 

Dep., pp. 22-23, 32-33, 58-60; Plaintiffs’ Requests for Admissions, nos. 25-26; Fed. R. Civ. P. 

36(a)). Defendant Mizell has admitted, among other things, that during all relevant times: 

- He has been president, sole officer and 100% owner of both Shelley 

Communications, Inc. and Stage Door Development Inc. (Mizell Dep. p. 21, 

lines 15-23; p. 23, lines 5-7; p. 32, line 22 - p. 33, line 2; p. 33, lines 19-21; 

see also Plaintiffs’ Requests for Admissions, nos. 1-2; Fed. R. Civ. P. 36(a)); 

- He is entitled to the profits generated by the operation of radio stations 

WGEA and WRJM-FM, and he has a financial interest in their operation 

(Mizell Dep. p. 33, lines 6-10; see also Plaintiffs’ Requests for Admissions, 

nos. 25-26; Fed. R. Civ. P. 36(a)); 

- He has the sole authority to hire and fire employees of the stations (Mizell 

Dep. p. 58, line 7 - p. 60, line 11; Defendants’ Answers to Interrogatories, no. 

19); 

- He is the one responsible for the broadcasting and business activities of both 

stations (Mizell Dep. p. 49, line 22 - p. 50, line 8; see also Plaintiffs’ Requests 

for Admissions, no. 3-6; Fed. R. Civ. P. 36(a)). 

D. PROOF OF PERFORMANCE

The musical compositions listed on Exhibit A to the Complaint in this case were 

performed, without permission, by broadcast over either radio station WGEA or radio station 

WRJM in late February, 2006. The affidavits of Jerry Glaze and Oleksander Kuzyszyn establish 

that the following songs were performed by broadcast over radio station WGEA on February 25 

or 27, 2006: “WE DIDN’T START THE FIRE,” LITTLE WING,” HEY THERE,” “BEGIN 

THE BEGUINE,” “PINK HOUSES,” “PANAMA,” “THIS WILL BE (AN EVERLASTING 

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LOVE),” “RASPBERRY BERET,” and “FAITH.” (Glaze Aff., ¶ 3; Kuzyszyn Aff., ¶¶ 5-6) The 

Glaze and Kuzyszyn affidavits also establish that the following songs were performed by 

broadcast over radio station WRJM-FM on February 24, 25 or 26, 2006: “MASTER OF 

PUPPETS,” “LITTLE RED CORVETTE,” “LIGHT MY FIRE,” “BIG YELLOW TAXI,” 

“JUMP,” “RIKKI, DON’T LOSE THAT NUMBER,” “GOD WILL MAKE A WAY,” “SINCE I 

DON’T HAVE YOU,” “WE HAVE COME INTO HIS HOUSE (TO WORSHIP HIM),” 

“SMALL TOWN” and “1999.” (Glaze Aff., ¶ 4; Kuzyszyn Aff., ¶¶ 5-6). In addition, 

defendants have effectively admitted the fact of performance by not responding to plaintiffs’ 

requests for admission. (Plaintiffs’ Requests for Admissions, no. 15; Fed. R. Civ. P. 36(a)). 

The proof of performance is also contained in the audio cassette tapes, recorded by Mr. 

Glaze, which capture the broadcast of defendants’ radio stations on the dates in question. Mr. 

Mizell has conceded that the recordings provide the best proof of what was broadcast over the 

stations. (See Defendants’ Answers to Interrogatories, no. 25). The Kuzyszyn affidavit 

establishes that the tape recordings contain the unauthorized performances of plaintiffs’ songs on 

which this action is based. (Kuzyszyn Aff., ¶ 6). 

III. THE ISSUES TO BE DETERMINED BY THE COURT

On this record, we may summarize the issues before the Court as follows: 

- Are the defendants liable as infringers and is summary judgment appropriate? 

- If the defendants are liable as infringers, what are the appropriate remedies 

and, in particular, what amount of statutory damages should be awarded 

plaintiffs? 

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We shall now demonstrate that summary judgment for the plaintiffs is appropriate, as are 

the remedies they seek. 

IV. ARGUMENT

A. THERE IS NO GENUINE ISSUE AS TO ANY MATERIAL FACT AND 

 PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW 

As set forth in Almo Music Corp. v. 77 East Adams, Inc., 647 F. Supp. 123, 124 (N.D. 

Ill. 1986), the elements of copyright infringement by unauthorized public performance are: 

(1) the originality and authorship of the compositions involved; 

(2) compliance with the formalities required to secure a copyright under Title 17, 

United States Code; 

(3) plaintiffs’ ownership of the copyrights of the relevant compositions; 

(4) defendants’ public performance of the compositions; 

(5) defendants’ failure to obtain permission from the plaintiffs or their representatives 

for such performance.5

As shown below, plaintiffs have satisfied each element. 

1. PLAINTIFFS OWN VALID COPYRIGHTS IN THE SONGS IN SUIT

Plaintiffs have conclusively established the first three elements of their case -- ownership 

of valid copyrights in the songs in suit -- through the submission of copies of copyright 

certificates annexed to the Jenkins affidavit. Copyright registration certificates constitute prima

facie evidence of the facts stated therein, 17 U.S.C. § 410(c), and, with the other pertinent 

documents, establish proof of plaintiffs’ ownership of valid copyrights in the compositions in 

 

 5Although this case and others treat a defendant’s failure to obtain permission as an element of plaintiffs’ 

proof, this element is in the nature of an affirmative defense -- it is for the defendant to plead and affirmatively 

prove that he was authorized to perform plaintiffs’ songs. See Fed. R. Civ. P. 8(c). 

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suit. Simpleville Music et al. v. H. Jack Mizell, 451 F. Supp. 2d 1293, 1296 (M.D. Ala. 2006).6

 

See also Warner Bros., Inc. v. Lobster Pot, Inc., 582 F. Supp. 478, 481 (N.D. Ohio 1984); Flyte 

Tyme Tunes v. Miszkiewcz, 715 F. Supp. 919, 921 (E.D. Wis. 1989). 

2. DEFENDANTS PERFORMED PLAINTIFFS’ SONGS WITHOUT PERMISSION

The Glaze and Kuzyszyn affidavits establish that the songs listed in counts 1 through 7 

and 9 through 10 on Schedule A to the complaint were performed by broadcast over radio station 

WGEA on February 25 and 27, 2006, and that the songs listed in counts 11 through 21 on 

Schedule A to the complaint were performed by broadcast over radio station WJRM-FM on 

February 24, 25 and 26, 2006. See, e.g., Nick-O-Val Music Co. v. P.O.S. Radio, Inc., 656 

F. Supp. 826 (M.D. Fla. 1987); Boz Scaggs v. KND Corp., 491 F. Supp. 908 (D. Conn. 1980). 

As set forth in section II.B. and II.D. above, the proof of performance is uncontroverted, as is the 

proof that these performances were done without permission. 

3. DEFENDANT MIZELL IS JOINTLY LIABLE ALONG WITH THE 

CORPORATE DEFENDANTS FOR THE INFRINGING PERFORMANCES 

An action for copyright infringement is a tort action, and all who participate in the 

tortious activity are jointly and vicariously liable as tortfeasors. See, e.g., Screen Gems -

Columbia Music, Inc. v. Metlis & Lebow Corp., 453 F.2d 552, 554 (2d Cir. 1972); Boz Scaggs 

v. KND Corp., 491 F. Supp. 908; Italian Book Corp. v. Palms Sheepshead Country Club, Inc., 

186 U.S.P.Q. 326, 327 (E.D.N.Y. 1975). Clearly, Shelley Broadcasting Company, Inc. and 

Stage Door Development, Inc., as the owners and FCC licensees of the two stations over which 

the infringing performances were broadcast, are liable for the infringements. Just as clearly, 

Mizell is personally liable for those acts. See Simpleville Music, 451 F. Supp. 2d at 1299 (“[A]s 

 6 For the Court’s convenience, a copy of the reported decision is attached to this Memorandum.

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the president, owner, and sole stockholder of the companies that own WGEA and WRJM-FM, 

[Mizell] is liable for any infringement occurring at the stations.”). Mizell was actively involved 

in both corporations’ principal business activities – the operation of radio stations WGEA and 

WRJM-FM – and he admittedly derives direct financial benefit therefrom. (Mizell Dep. p. 33, 

lines 6-10; see also Plaintiffs’ Requests for Admissions, nos. 25-26; Fed. R. Civ. P. 36(a)). As 

Mr. Mizell testified, he is solely responsible for the broadcasting and business activities of both 

stations. (Mizell Dep. p. 49, line 22 - p. 50, line 8). He is “the supervising, dominant figure at 

the two radio stations.” Simpleville Music, 451 F. Supp. 2d at 1299. By any standard, Mizell is 

vicariously liable with his corporations as an infringer. See, e.g, Boz Scaggs Music v. KND 

Corp., 908 F. Supp. at 913-914; and Meadowgreen Music Co. v. Voice In The Wilderness 

Broadcasting, Inc., 789 F. Supp. 823, 826 (E.D. Tex. 1992) (both cases stand for the proposition 

that a corporate officer who has a direct financial interest in a radio station and the right and 

ability to supervise its activities is to be held vicariously liable for the resulting infringements). 

4. THE PUTATIVE “DEFENSES” ARE LEGALLY INSUFFICIENT

 Defendants’ answer pleads a litany of defenses, in addition to denying the factual 

averments of the complaint and pleading “the general issue.” These defenses are both factually 

and legally insufficient to prevent the imposition of liability, however. For the reasons set forth 

below. 

 Defendants’ denial of plaintiffs’ factual averments, pleading of “the general issue,” 

assertion of “failure to state a claim,” and denial of indebtedness (first, second, ninth, and tenth 

defenses) are without merit.7

 Plaintiffs have pleaded in their Complaint, and in connection with 

 7 To the extent these defenses are meant to allude to the defenses raised by Mizell in the Simpleville Music

case, the Court found each of those to be “meritless.” See 451 F. Supp. 2d at 1296-99. 

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this motion have satisfied their burden of proof as to, the elements of a prima facie claim of 

copyright infringement; plaintiffs’ proof on those elements is uncontroverted. See Simpleville 

Music, 451 F. Supp. 2d at 1295 (in opposition to a properly-supported motion for summary 

judgment, “[t]he non-moving party must affirmatively set forth specific facts showing a genuine 

issue for trial and may not rest upon the mere allegations or denials in the pleadings”). 

 Defendants’ assertion that the Court lacks jurisdiction (third defense) is meritless. This 

case is brought under a statute of the United States – the Copyright Law, 17 U.S.C. § 501 et seq

– and the Court therefore has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 

1338(a). 

 Defendants’ assertion that the Court lacks personal jurisdiction over them, or that venue 

is improper (fourth, fifth, and sixth defenses), is equally meritless. H. Jack Mizell lives at 285 

East Broad Street in Ozark, Alabama, which is also the address for both corporate defendants. 

(Defendants’ Answers to Interrogatories, nos. 1, 6, 7). As residents of Alabama, all defendants 

are subject to the general jurisdiction of the courts of this State, and they have been served 

personally with a summons in this case. Therefore, the Court’s personal jurisdiction over them 

has been established. See Fed. R. Civ. P. 4(k)(1)(A). The radio stations whose broadcasts 

constitute the infringing performances on which this action is based are also located within the 

Middle District – in Ozark and in Geneva, Alabama. (Mizell Dep., p. 25, line 14 – p. 26, line 8). 

Clearly, venue is proper in this District not only because the defendants all reside here, but also 

because a substantial part of the events giving rise to the claims occurred here. See 28 U.S.C. 

§ 1391(b). 

 Defendants’ assertion of insufficient process and insufficient service of process (seventh 

and eighth defenses) are also meritless. After refusing service by certified mail, defendants were 

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served personally with a copy of the complaint and the alias summons (Doc. 3) by a process 

server at 285 East Broad Street in Ozark, Alabama, Mizell’s place of residence and the 

corporations’ business address. (See Doc. Nos. 4, 5, and 6). Service was therefore perfected. 

See Fed. R. Civ. P. 4(e)(2) & 4(h)(1). Regarding the insufficient process defense, the alias 

summonses with which defendants were served complied in all respects with the requirements of 

Rule 4(a) and were signed, sealed, and issued by the Clerk for service on defendants in 

compliance with Rule 4(b). (See Doc. 3; Fed. R. Civ. P. 4(a) & (b)). Therefore, the process 

served on defendants was sufficient. 

Defendants’ Nineteenth Defense invokes the Alabama Rules of Civil Procedure, which 

simply do not apply in this federal case. Defendants’ remaining defenses alleging violations of 

various constitutional rights are apparently predicated on their mistaken notion that plaintiffs are 

seeking common law punitive damages, which are not applicable in this case. Plaintiffs seek 

statutory damages and other remedies available under the Copyright Law. (See generally

Complaint).8 The statutory damages requested by plaintiffs are well within the appropriate 

range for copyright infringement actions such as this, as provided for in 17 U.S.C. § 504(c)(2). 

In fact, considering that the range of damages in plaintiffs’ prayer for relief could have totaled up 

to $150,000 for each cause of action ($3,150,000 in the aggregate) plaintiffs request for $5,000 

per cause of action ($105,000 in the aggregate) is on the low end of the permissible range. 

 Moreover, statutory damages are intended to achieve a variety of goals, including 

compensating copyright holders for actual harm that is caused, deterring defendants and other 

would be infringers from infringing in the future, providing an incentive for copyright owners to 

 8

As the leading treatise on copyright law makes clear, most courts have held that the federal copyright 

statute effectively forecloses an award of punitive damages, primarily because of the availability of statutory 

damages ranging up to $150,000 per infringement under 17 U.S.C. § 504(c)(2). 4 Nimmer On Copyright, § 

14.02[C][2], pp. 14-33-14-34 (2006).

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protect their rights, and finally, punishing unlawful conduct. 

 The Copyright Act has built-in “caps” or ceilings, for awards of statutory damages and 

those caps serve to constrain and limit the potential damages that any particular defendant can be 

assessed, thereby eliminating any argument that statutory damages sought by plaintiffs in this 

action could be unconstitutionally excessive or disproportionate.9 

 * * * 

Because plaintiffs have established each element of a claim of copyright infringement, 

defendants have failed to offer any valid defenses, and there are no genuine issues of material 

fact, plaintiffs are entitled to the entry of summary judgment in their favor. Among the many 

decisions granting summary judgments in virtually identical cases include this Court’s decision 

in Simpleville Music et al. v. Mizell, 451 F. Supp. 2d 1293, cited above. As in that case, 

plaintiffs here are entitled to judgment as a matter of law. 

B. PLAINTIFFS ARE ENTITLED TO INJUNCTIVE RELIEF, STATUTORY 

DAMAGES, AND COSTS INCLUDING REASONABLE ATTORNEYS’ FEES

1. Injunctive Relief

17 U.S.C. § 502(a) provides: 

Any court having jurisdiction of a civil action arising under this title may...grant 

temporary and final injunctions on such terms as it may deem reasonable to 

prevent or restrain infringement of a copyright. 

 9 F.W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 231-32 (1952) International Korwin 

Corp. v. Kowalczyk, 855 F.2d 375; Dream Dealers Music v. Parker, 924 F. Supp. at 1153; Meadowgreen Music v. 

Voice In The Wilderness Broadcasting, Inc., 789 F. Supp. at 826-827; Coleman v. Payne, 698 F. Supp. 704 (W.D. 

Mich. 1988); and Nick-O-Val Music Co., Inc. v. P.O.S. Radio, Inc., 656 F. Supp. 826 (M.D. Fla. 1987).

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As the Blank affidavit demonstrates, defendants continue to perform ASCAP’s members’ 

music on a regular basis by broadcast over radio stations WGEA and WRJM-FM without an 

ASCAP license. (See Blank Aff., ¶ 14; see also Plaintiffs’ Requests for Admissions, nos. 16-18; 

Fed. R. Civ. P. 36(a)). Each day brings the risk (if not the certainty) of additional copyright 

infringements by broadcast over defendants’ stations. Moreover, defendants’ continuing 

infringements are willful: after defendants’ long history of contact with ASCAP and their 

unsuccessful attempts to defend the copyright infringement claims in the Simpleville Music case, 

defendants certainly know that their conduct puts them at risk of infringing the copyrights of 

these plaintiffs and, indeed, of other copyright owners not represented here. With that history, 

defendants’ continuing infringing behavior is clearly willful. They simply refuse to comply with 

the law. 

Under these circumstances, permanent injunctive relief is appropriate. As the Court 

noted in Simpleville Music, “the court may, as a general matter, [enter permanent injunctive 

relief] only when there is a substantial likelihood of further infringement of a plaintiff's 

copyrights. 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 14-06[B] (2006).” 

451 F. Supp. 3d at 1300.10 Plaintiffs respectfully suggest that defendants’ pattern of recalcitrant 

behavior suggests there is a substantial likelihood of further infringing performances, absent 

injunctive relief. Therefore, plaintiffs are entitled to an injunction prohibiting further infringing 

performances. See, e.g., All Nations Music v. Christian Family Network, Inc., 989 F. Supp. at 

 10 This Court, in Simpleville Music, held that an evidentiary hearing would be necessary before awarding 

plaintiffs injunctive relief because “[t]he record, on plaintiffs’ summary-judgment motion is unclear whether 

Mizell’s failure to honor the plaintiffs copyrights was in good or bad faith.” Id at 1300. In order to save time and 

expense, plaintiffs in that action did not request such a hearing and declined to seek injunctive relief. However, in 

the current action, after all that has transpired, it is clear that defendants have not acted in good faith and no 

evidentiary hearing on the issue is required on the issue of injunctive relief.

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869; Dream Dealers Music v. Parker, 924 F. Supp. 1146, 1152-1153 (S.D. Ala. 1996); and 

Meadowgreen Music Co. v. Voice In The Wilderness Broadcasting, Inc., 789 F. Supp at 826. 

Recognizing that plaintiffs in this type of action represent all of ASCAP’s members, 

courts routinely enjoin defendants from performing any or all music in the ASCAP repertory. 

See, e.g., Harrison Music Corp. v. Tesfaye, 293 F. Supp. 2d 80, 83 (D.D.C. 2003); All Nations 

Music v. Christian Family Network, Inc., 989 F. Supp. at 869; and Brockman Music v. Mass Bay 

Lines, Inc., 7 U.S.P.Q. 2d 1089, 1091 (D. Mass. 1988). We respectfully submit that plaintiffs are 

entitled to similar relief. 

2. Statutory Damages

The Copyright Act, 17 U.S.C. § 504(c)(1), provides in pertinent part: 

[T]he copyright owner may elect. . .to recover, instead of actual damages and 

profits, an award of statutory damages. . .in a sum of not less than $750 or more 

than $30,000 as the court considers just. 

In cases such as this, where plaintiffs seek statutory rather than actual damages and where 

defendants knowingly and deliberately infringed plaintiffs’ copyrights, courts typically award 

substantially more than minimum statutory damages and more than the infringer would have 

paid in license fees. See, e.g., International Korwin Corp. v. Kowalczyk, 855 F.2d 375; Dream 

Dealers Music v. Parker, 924 F. Supp. at 1153; Meadowgreen Music v. Voice In The Wilderness 

Broadcasting, Inc., 789 F. Supp. at 826-827; and Nick-O-Val Music Co., Inc. v. P.O.S. Radio, 

Inc., 656 F. Supp. 826 (M.D. Fla. 1987) (in each case, the damages awarded were substantially in 

excess of the amount of license fees the infringer “saved” by avoiding payment of license fees to 

ASCAP). 

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In F.W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 231-32 (1952), the 

United States Supreme Court held that merely awarding plaintiffs damages equal to lost profits 

does not sufficiently deter infringements. Thus, courts should formulate a damage award that 

will achieve the deterrent purposes of the statutory damages provision. The Court said: 

. . . [A] rule of liability which merely takes away the profits from an infringement 

would offer little discouragement to infringers. It would fall short of an effective 

sanction for enforcement of the copyright policy. The . . . statutory rule, 

formulated after long experience . . . also is designed to discourage wrongful 

conduct. The discretion of the court is wide enough to permit a resort to statutory 

damages for such purposes. Even for uninjurious or unprofitable invasion of 

copyright the court may, if it deems it just, impose a liability within the statutory 

limits to sanction and vindicate the statutory policy. 

344 U.S. at 233. 

Factors to be considered include “the expenses saved and profits reaped by the 

defendants in connection with the infringements, the revenues lost by the plaintiffs as a result of 

the defendants’ conduct, and the infringers’ state of mind -- whether willful, knowing, or merely 

innocent.” Boz Scaggs Music v. KND Corporation, 491 F. Supp. at 914. 

As in the cases cited, plaintiffs in this action are offering no proof of actual damages. 

Typically, plaintiffs in such as this seek damages in an amount related to the license fees the 

infringer has “saved” by his or her infringer conduct. Here, however, that simply will not 

suffice; rather, Plaintiffs respectfully urge the Court to award statutory damages in an amount 

sufficient to impress on defendants the gravity of the situation -- $5,000 per infringement. 

In another “ASCAP” case, the court in Milene Music, Inc. v. Gotuaco, 551 F. Supp. 1288 

(D.R.I. 1982), observed that when an infringer’s conduct is particularly egregious an 

examination of more than the license fees owed is necessary in formulating appropriate damage 

awards, “[c]ourts thus have focused on the element of intent, and the per infringement award 

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18 

tends understandably to escalate in direct proportion to the blameworthiness of the conduct.” Id. 

at 1296. 

In Coleman v. Payne, 698 F. Supp. 704 (W.D. Mich. 1988), the defendant owned a radio 

station but refused to obtain an ASCAP license and was also sued by members of ASCAP three 

times. In awarding $5,000 for each of 10 infringements when license fees would have totaled 

approximately $5,450, the court noted that such an award was warranted “both as compensation 

for their [plaintiffs’] loss and as a means to deter this defendant, and others like him, from further 

copyright violations.” Id. at 708. See also Broadcast Music Inc. v. Entertainment Complex, 198 

F. Supp. 2d 1291 (N.D. Ala. 2002) (total damage award of $43,000; license fees would have 

totaled approximately $14,400); Pedrosillo Music, Inc. v. Radio Musical, Inc., 815 F. Supp. 511, 

516 (D. P.R. 1993); Chi-Boy Music v. Charlie Club, Inc., 930 F.2d 1224, 1229-30 (7th Cir. 

1991) (total damage award of $40,000; approximately three times the amount of license fees); 

Golden Torch Music Corp. V. Pier III Café, Inc., 684 F. Supp, 772 (D. Conn. 1988) (total 

damage award of $8,000; license fees would have totaled approximately $1,500); and Nick-OVal Music, Co., Inc. v. P.O.S. Radio, Inc., 656 F. Supp. 826 (M.D. Fla. 1987) (estimated license 

fees in the amount of $22,000; damages totaling $50,000). 

C. Costs and Attorneys’ Fees

17 U.S.C. § 505 provides: 

In any civil action under this title, the court in its discretion may allow the 

recovery of full costs by or against any party . . . [T]he court may also award a 

reasonable attorney’s fee to the prevailing party as part of the costs. 

In Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994), the Supreme Court pronounced the rule 

with respect to attorneys’ fees in copyright cases: 

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. . . Prevailing plaintiffs and prevailing defendants are to be treated alike, but 

attorney’s fees are to be awarded to prevailing parties only as a matter of the 

court’s discretion. 

510 U.S. at 534. 

In an earlier “ASCAP” case, Boz Scaggs Music v. KND Corp., 491 F. Supp. 908, Judge 

Blumenfeld applied the same analysis prescribed by the Supreme Court in determining that the 

plaintiffs were entitled to attorneys’ fees: 

. . . Some of the considerations that might justify the denial of fees include the 

presence of a complex or novel issue of law that the defendants litigate vigorously 

and in good faith [citation omitted]; the defendants’ status as innocent, rather than 

willful or knowing, infringers, [citation omitted]; bad faith on the plaintiffs’ part 

in prosecuting the action [citation omitted]; or a good faith attempt by the 

defendants to avoid infringement [citation omitted]. 

 None of these justifications for denying an award of fees is present in this 

case. Quite the contrary, liability is unquestionable on both the law and the facts; 

the defendants’ conduct, whatever their precise state of mind, was certainly not 

innocent; they repeatedly rebuffed offers to resolve the dispute prior to the 

commencement of litigation; their defense efforts in this action have been spare; 

and they made no attempt whatsoever to avoid infringement although they were 

well award of the law’s requirements. While statutory damages are assessed in 

lieu of actual damages, “the counsel fees provision was designed ‘to penalize the 

losing party as [well as] to compensate the prevailing party.’“ [citations omitted]. 

Equity dictates that the defendants be required to pay the plaintiffs an allowance 

for attorneys’ fees. 

Id. at 915 (emphasis in original). Similarly, in Milene Music, Inc. v. Gotauco, on facts again 

very similar to those in this case, Judge Selya concluded: 

The defendants have deliberately and knowingly infringed upon plaintiffs’ 

copyrights; and subsequent to such infringement, have forced the plaintiffs to 

engage lawyers and to resort to the courts to enforce their proprietary interests in 

the copyrights. The defendants, in the Court’s view, have come forward with no 

justification for their actions, nor any colorable grounds whatever upon which 

defense or mitigation could be predicated. The Court believes that this litigation 

fairly cries out for an award of attorneys’ fees. 

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551 F. Supp. at 1298. See also Dream Dealers Music v. Parker, 924 F. Supp. at 1153-1154; and 

Little Mole Music v. Spike Inv., Inc., 720 F. Supp. 751, 757 (W.D. Mo. 1989) (awards of 

attorneys’ fees “are in keeping with the policy behind the Copyright Act’s fee shifting provision, 

for often the actual value of the recovery in copyright infringement actions may not be 

commensurate with the attorneys’ fees incurred to obtain the recovery. Without the fee-shifting 

provision, copyright owners would doubtless be exceedingly reluctant to enforce their rights in 

such cases.”). 

This case, too, “cries out for an award of attorneys’ fees.” Milene Music, Inc. v. Gotauco, 

551 F. Supp. at 1298. Defendants have not only continued to violate the Copyright Law but also 

have failed to come forward with any justification for their actions or any “colorable grounds” 

for a defense. Id. Therefore, this Court, too, should award the Plaintiffs their costs including 

reasonable attorneys’ fees. 11

 CONCLUSION

 Upon the record before the Court and for the reasons set forth above, plaintiffs should be 

granted summary judgment awarding injunctive relief, statutory damages of $5,000 per 

infringement, and costs including reasonable attorneys’ fees. 

 11Plaintiffs’ counsel is also submitting herewith an affidavit setting forth attorneys’ fees and costs incurred 

in connection with this action as of February 6, 2007.

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Dated: February 8, 2007 

Respectfully submitted, 

s/ Dylan C. Black 

Dylan C. Black (ASB-6595-K72D) 

Bradley Arant Rose & White LLP

1819 Fifth Avenue North 

Birmingham, AL 35203-2119 

(205) 521-8000; Facsimile: (205) 521-8800 

E-mail: dblack@bradleyarant.com 

One of the Attorneys for Plaintiffs 

OF COUNSEL: 

James W. Gewin 

BRADLEY ARANT ROSE & WHITE LLP

1819 Fifth Avenue North 

Birmingham, AL 35203-2104 

(205) 521-8000; Facsimile (205) 521-8800 

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CERTIFICATE OF SERVICE

I hereby certify that on February 8, 2007, I electronically filed the foregoing with 

the Clerk of the Court using the CM/ECF system which will send notification of such filing to 

the following: 

Steve McGowan 

119 S. Foster Street, Ste. 101 

Dothan, Alabama 36301 

wula@aol.com 

and I hereby certify that I have mailed by United States Postal Service the document to the 

following non-CM/ECF participants: 

None 

s/ Dylan C. Black 

Dylan C. Black (ASB-6595-K72D) 

Bradley Arant Rose & White LLP

One Federal Place 

1819 Fifth Avenue North 

Birmingham, AL 35203-2119 

(205) 521-8000; Facsimile: (205) 521-8800 

E-mail: dblack@bradleyarant.com 

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