1. The plaintiffs are: Joelsongs; Experience

Hendrix, LLC; Richard Adler, d/b/a Lakshmi Puja Music,

Ltd.; Judith Coulter, d/b/a J&J Ross, Co.; Janie Coulter

Hartbarger d/b/a J&J Ross, Co.; Warner Bros., Inc.; Emi

Full Keel Music Co.; Van Halen Music Co.; Chappell & Co.,

Inc.; Jay’s Enterprises, Inc.; Controversy Music;

Creeping Death Music; Doors Music Company; Siquomb

Publishing Corp.; Universal Studios, Inc.; Integrity’s

Hosanna Music; Bonnyview Music, Corp.; and Sound III,

Inc.

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION

JOELSONGS, et al., )

)

Plaintiffs, )

) CIVIL ACTION NO.

v. ) 1:06cv774-MHT

) (WO) 

SHELLEY BROADCASTING )

COMPANY, INC., et al., )

)

Defendants. )

OPINION

The plaintiffs are members of the American Society of

Composers, Authors and Publishers (“ASCAP”), to which they

have granted a non-exclusive right to license non-dramatic

public performances of their copyrighted musical

compositions.1

 The plaintiffs brought this lawsuit against

defendants Shelly Broadcasting Company, Inc., Stage Door

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Development, Inc., and H. Jack Mizell, charging that they

violated the Copyright Act, 17 U.S.C. §§ 101-1332, by

playing ASCAP’s copyrighted musical compositions on the

radio without authorization. This court has jurisdiction

under 28 U.S.C. § 1338(a) (copyright) and § 1331 (federal

question). 

Currently before the court is the plaintiffs’ motion

for summary judgment. The motion will be granted.

I. SUMMARY-JUDGMENT STANDARD

Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). Under Rule 56, the party

seeking summary judgment must first inform the court of

the basis for the motion, and the burden then shifts to

the non-moving party to demonstrate why summary judgment

would not be proper. Celotex Corp. v. Catrett, 477 U.S.

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317, 323 (1986); see also Fitzpatrick v. City of Atlanta,

2 F.3d 1112, 1115-17 (11th Cir. 1993) (discussing burdenshifting under Rule 56). 

The court’s role at the summary-judgment stage is not

to weigh the evidence or to determine the truth of the

matter, but rather to determine only whether a genuine

issue exists for trial. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249 (1986). In doing so, the court must

view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor

of that party. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986).

II. FACTS

On February 25 and 27, 2006, several ASCAP copyrighted

compositions were broadcast over radio-station WGEA, which

is operated by Shelley Broadcasting. On February 24, 25,

and 26, 2006, additional selections of ASCAP copyrighted

songs were broadcast on radio-station WRJM-FM, which is

operated by Stage Door. Mizell is the owner of Shelley

Case 1:06-cv-00774-MHT-SRW Document 26 Filed 06/08/2007 Page 3 of 18
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Broadcasting and Stage Door. A total of 20 ASCAPcopyrighted songs were broadcast over the defendants’

radio stations. Neither station had ASCAP’s permission to

perform these compositions. 

The 20 broadcasted songs are “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.”

III. DISCUSSION

“To establish a prima-facie copyright infringement

case for a musical composition, a plaintiff may prove (1)

ownership of a valid copyright and (2) ‘public

performance’ of the copyrighted work without

authorization.” Simpleville Music v. Mizell, 451 F. Supp.

2d 1293, 1291 (M.D. Ala. 2006) (Thompson, J.) (citing 17

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U.S.C. § 106(4) (subject to specific exclusions outlined

in the Copyright Act, “the owner of copyright ... has the

exclusive rights ... in the case of ... musical ... works

... to perform the copyrighted work publicly”)); cf.

Feist Publications, Inc. v. Rural Telephone Service Co.,

Inc. 499 U.S. 340, 361 (1991) (“To establish infringement,

two elements must be proven: (1) ownership of a valid

copyright, and (2) copying of constituent elements of the

work that are original.”).

The plaintiffs have satisfied the first element by

submitting copies of the copyright-registration

certificates which, pursuant to 17 U.S.C. § 410(c),

constitute prima-facie evidence of copyright ownership.

17 U.S.C. § 410 (c) (“In any judicial proceedings the

certificate of a registration made before or within five

years after first publication of the work shall constitute

prima facie evidence of the validity of the copyright and

of the facts stated in the certificate.”); see also

Simpleville Music, 451 F. Supp. 2d at 1296 (“The

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plaintiffs have satisfied the first element by submitting

copies of the copyright registration certificates.”).

In satisfaction of the second element, the plaintiffs

present the affidavits of Jerry Glaze, who recorded the

broadcasts off radio-stations WGEA and WRJM-FM on the days

in dispute, and Oleksander Kuzyszyn, who listened to the

tapes and identified that the 20 compositions constituting

the basis of this lawsuit were found on the tape

recordings. By failing to respond to the plaintiffs’

request for admissions, the defendants admitted to the

songs being played, see Fed. R. Civ. P. 36(a), and the

defendants also admit that they did not have permission to

broadcast the 20 songs.

The defendants, however, assert three defenses to the

copyright claims: that (1) the music was played as part of

satellite programming for which they did not need a

license; (2) only the radio stations, not Mizell, should

be liable for the alleged infringements; and (3) they did

not intend to violate copyright laws. The court will

discuss the validity of each defense. 

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A. Songs Played During Satellite Programming 

The defendants contend that all the songs were played

during satellite programming and that the satellite

companies assured Mizell that no copyrighted material

would be played. Although the defendants have not

presented any physical evidence to support this

contention, the assurances, even if made, do not absolve

the defendants of liability because “a broadcaster who is

aware of his obligations under copyright law remains

responsible for ensuring that copyrighted music is not

aired without permission.” Jobete Music Co., Inc. v.

Johnson Communications, Inc., 285 F.Supp.2d 1077, 1089

(S.D. Ohio 2003) (Rice, C.J.); see also Simpleville Music,

451 F. Supp. 2d at 1299 (“Although Mizell did not produce

the commercial or the radio shows himself, he was still

responsible for ensuring that all of the licensing fees

were paid. Consequently, Mizell's no-intent defense is

meritless.”). Therefore, although the copyrighted music

was aired through satellite programming, the defendants

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were still responsible for ensuring that all of the

licensing fees were paid; the defendants are still liable

for violating the Copyright Act. 

B. Intent

The defendants protest that they did not intend to

play copyrighted material and took measures to protect

against such infringements. However, “intention to

infringe is not essential under the [Copyright] Act.”

Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191, 198

(1931); see also Simpleville Music, 451 F. Supp. 2d at

1299; 4 Melville B. Nimmer & David Nimmer, Nimmer on

Copyright § 13.08 (2006) (“In actions for statutory

copyright infringement, the innocent intent of the

defendant will not constitute a defense to a finding of

liability.”). The defendants’ lack of intent does not

shield them from liability. 

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C. Personal Liability of Owner

Mizell denies liability on the ground that he did not

personally participate in, or profit from, the

infringement; he says he performed his duties as only the

owner. However, the record is clear that, as the

president, owner, and sole stockholder of the companies

that own WGEA and WRJM-FM, he was essentially a one-man

show. A person, “including a corporate officer, who has

the ability to supervise infringing activity and has a

financial interest in that activity, or who personally

participates in that activity is personally liable for the

infringement.” Southern Bell. Tel. & Tel. Co. v.

Associated Tel. Directory Publishers, Inc., 756 F.2d 801,

811 (11th Cir. 1985) (citation omitted). Similarly,

“under the Copyright Act, an individual who is the

dominant influence in a corporation, and through his

position can control the acts of that corporation, may be

held jointly and severally liable with the corporate

entity for copyright infringements, even in the absence of

the individual’s actual knowledge of the infringements.”

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2. In relevant part, § 504(c) provides:

“(1) Except as provided by clause (2) of

this subsection, the copyright owner may

elect, at any time before final judgment

is rendered, to recover, instead of

actual damages and profits, an award of

statutory damages for all infringements

involved in the action, with respect to

any one work, ... in a sum of not less

than $ 750 or more than $ 30,000 as the

court considers just....

“(2) In a case where the copyright owner

(continued...)

10

Simpleville Music, 451 F. Supp. 2d at 1299 (quoting

Quartet Music v. Kissimmee Broadcasting, Inc., 795 F.

Supp. 1100, 1103 (M.D. Fl. 1992) (Kellam, J.). “The

record is clear that Mizell fits the bill of being the

supervising, dominant figure at the two radio stations.”

Id. As such, he is personally liable for the Copyright

Act violations. 

D. Damages 

17 U.S.C. § 504(c) of the Copyright Act allows a

plaintiff to recover “statutory damages” in lieu of actual

damages.2

 The court without finding wilfulness can award

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2. (...continued)

sustains the burden of proving, and the

court finds, that infringement was

committed willfully, the court in its

discretion may increase the award of

statutory damages to a sum of not more

than $ 150,000. In a case where the

infringer sustains the burden of

proving, and the court finds, that such

infringer was not aware and had no

reason to believe that his or her acts

constituted an infringement of

copyright, the court in its discretion

may reduce the award of statutory

damages to a sum of not less than

$ 200....”

11

up to $ 30,000 per infringement in statutory damages. Id.

A finding of wilfulness allows the court to raise the

statutory award to no more than $ 100,000 per

infringement. Id. The plaintiffs are seeking $ 5,000 in

statutory damages per infringement. Because plaintiffs

are seeking less than $ 30,000, willfulness on the part of

the defendants is not required. However, the record shows

that the defendants did willfully infringe on the

plaintiffs’ copyrights. 

The defendants argue that they did not willfully

violate the Copyright Act because the alleged infringement

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occurred prior to the resolution of Simpleville Music,

where this court found that the same defendants had

infringed other ASCAP-member plaintiffs’ copyrights; the

defendants contend that up until that point they did not

know that they were violating the Copyright Act. However,

the record indicates, and the defendants do not dispute,

that before this or any other lawsuit was filed against

them, ASCAP repeatedly offered them an ASCAP license,

which would have permitted them to play the plaintiffs’

copyrighted works legally. ASCAP further informed the

defendants that, without a proper license, their conduct

would violate copyright laws. Nevertheless, the

defendants refused ASCAP’s offers of a license, while

continuing to broadcast copyrighted songs. 

Moreover, in 1993, in Bencap v. Shelley Broadcasting,

civil action no. 93-A-696-S (M.D. Ala. Dec. 28, 1993),

Shelley Broadcasting and Mizell agreed to a consent

judgment where they admitted to “willfully” infringing the

copyrights of the ASCAP-member plaintiffs, and they were

permanently enjoined from publicly performing the

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plaintiffs’ musical compositions in the future. And, in

2004, in Simpleville Music, before entry of a final

judgment against Mizell in that case and before the

infringements in the instant case, this court entered a

default judgment in the amount of $ 48,000 against Shelley

Broadcasting and Stage Door for infringing the copyrights

of the ASCAP-member plaintiffs in that case.

In light of the defendants’ previous, continuous, and

knowing and willful infringements of ASCAP-members’

copyrights, it is indisputable that their violations of

the Copyright Act here were willful. However, the court

does not find it appropriate to increase the statutory

damages above the amount requested by the plaintiffs; the

court will award statutory damages in the amount of

$ 5,000 per violation.

E. Injunction

The plaintiffs also seek, pursuant to § 502 of the

Copyright Act, to enjoin the defendants from publicly

performing ASCAP members’ copyrighted music. Section

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502(a) of the Copyright Act specifically authorizes this

court to “grant ... final injunctions on such terms as it

may deem reasonable to prevent or restrain infringement of

a copyright.” See Pacific & Southern Co., Inc. v. Duncan,

744 F.2d 1490, 1499 n.17 (11th Cir. 1984) (the Copyright

Act authorizes an injunction “on such terms as it may deem

reasonable to prevent or restrain infringement of a

copyright”), cert. denied, 471 U.S. 1004 (1985). 

While the court may grant a permanent injunction “on

such terms as it may deem reasonable to prevent or

restrain infringement of a copyright,” 17 U.S.C. § 502(a),

that grant is not unlimited; the court may, as a general

matter, do so only when there is a substantial likelihood

of further infringement of a plaintiff’s copyrights.

Simpleville Music, 451 F. Supp. 2d at 1300; see also 4

Melville B. Nimmer & David Nimmer, Nimmer on Copyright

§ 14-06[B](2006).

The plaintiffs contend that the defendants are likely

to continue infringing on the copyrighted compositions

that belong to them and all other ASCAP members as

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demonstrated by the fact that the defendants have been

sued twice already, and yet they have willfully continued

to infringe on the copyrights of ASCAP members. As

stated, in 1993, in Bencap, Shelley Broadcasting and

Mizell agreed to a consent judgment where they admitted to

“willfully” infringing the copyrights of the ASCAP-member

plaintiffs, and they were permanently enjoined from

publicly performing the plaintiffs’ musical compositions

in the future, and, in 2004, in Simpleville Music, before

the infringements in the instant case, this court entered

a default judgment in the amount of $ 48,000 against

Shelley Broadcasting and Stage Door for infringing the

copyrights of the ASCAP-member plaintiffs in that case.

The defendants have, therefore, unsuccessfully defended

two prior lawsuits in which money judgments were awarded

against them, and yet they continued to violate the

Copyright Act by broadcasting copyrighted compositions

without first obtaining a proper license. It is

indisputable that money judgments have not been an

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effective tool to “prevent or restrain infringement[s] of

... copyright[s],” 17 U.S.C. § 502(a), by the defendants.

The court recognizes that the injunction the

plaintiffs seek goes beyond a prohibition of the

unauthorized broadcasting of the plaintiffs’ songs only.

The court nevertheless considers such a broad injunction

warranted for several reasons. First, the defendants have

not objected to the breadth of the injunction. Second,

while it would appear that this lawsuit is brought by the

named plaintiffs, it is really brought by ASCAP as the

enforcement organization on behalf of the named

plaintiffs. ASCAP is “a clearing house for copyright

owners and users” that facilitates the negotiation of

licences and the monitoring and enforcement of

infringements where it would be impractical for individual

copyright owners to do so on their own. Broadcast Music,

Inc. v. Columbia Broadcasting System, Inc. 441 U.S. 1, 5

(1979). “[I]ts ... members grant it nonexclusive rights

to license non-dramatic performances of their works,” id.,

and the license includes “the ... enforcement against

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unauthorized copyright use.” Id. at 20. Therefore, it is

ASCAP, acting through its members, that is asking for the

broad injunction here. Third, there is substantial and

longstanding precedent for such broad injunctions in

circumstances similar to those presented here. See, e.g.,

Harrison Music Corp. v. Tesfaye, 293 F. Supp. 2d 80, 83

(D.D.C. 2003) (Leon, J.); All Nations Music v. Christian

Family Network, Inc., 989 F. Supp. 863 (W.D. Mich 1997)

(Miles, J.); Cross Keys Publ. Co. v. Wee, Inc., 921 F.

Supp. 479, 481 (W.D. Mich. 1995) (Quist, J.).

Therefore the plaintiffs are entitled to an injunction

prohibiting the defendants from directly or indirectly

infringing on the copyright rights of all ASCAP members.

***

Because, without question, the plaintiffs have

established a prima-facie case of copyright infringement

of each of the 20 songs and the defendants have failed to

offer valid defenses, summary judgment in favor of the

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plaintiffs will be entered. The judgment will include an

assessment of a $ 5,000 statutory fee for each of the 20

infringements, for a total of $ 100,000.00 (20 x $ 5,000

= $ 100,000.00), along with appropriate injunctive relief.

DONE, this the 8th day of June, 2007.

 /s/ Myron H. Thompson 

UNITED STATES DISTRICT JUDGE

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