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 

PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT 

OF THEIR MOTION FOR SUMMARY JUDGMENT

Plaintiffs Joelsongs, et al., submit this Reply to the Response to Motion for Summary 

Judgment (Doc. 19) filed by Defendants. 

Defendants have presented no evidence creating any genuine issue of fact in response to the 

well-documented proof Plaintiffs have submitted with their summary judgment motion regarding 

their copyright ownership of the songs in suit, the performance of the songs in suit and defendants’ 

lack of any permission to perform plaintiffs’ copyrighted songs. Contrary to Defendants’ 

suggestion that “all the Court has in front of it is the allegation” of infringement, Plaintiffs have 

submitted factual proof of each element of their copyright infringement claims, and that proof has 

gone undisputed. 

Having no factual or legal arguments to support their position, Defendants resort to accusing 

Plaintiffs of “piling on” by filing this suit. Of course, Plaintiffs filed this suit because the Copyright 

Act gives them the right to sue when their copyrighted musical compositions are broadcast over 

defendants’ radio stations without permission. Moreover, most of the Plaintiffs in this case were not 

named parties to the earlier Simpleville Music case, and none of the songs at issue in this case was at 

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issue in the earlier case. Far from illustrating an intent on Plaintiffs’ part to “pile on,” the copyright 

infringement claims in this case demonstrate that Defendants simply refuse to take any steps to 

curtail the infringing performances occurring daily over their radio stations. Nor have defendants 

made any attempt to pay the $74,251.24 judgment entered against them in the Simpleville Music

case. 

The only two legal arguments raised by Defendants – that Mizell should not be held 

personally liable for the infringing performances aired by his radio stations and that defendants 

lacked willful intent to infringe – were addressed and rejected by this Court in the Simpleville Music

case. Simply put, Mizell cannot escape personal liability by hiding behind the shell of his corporate 

entities, and the law imposes on defendants liability for the unauthorized performances of 

copyrighted music aired over their radio stations. See generally Plaintiffs’ Memorandum in Support 

of Summary Judgment, pp. 10-11. The Court recognized these principles in Simpleville Music, 451 

F. Supp. 2d 1293, 1299 (M.D. Ala. 2006): 

Mizell denies liability on the ground that he did not personally participate in 

the infringement. However, as the president, owner, and sole stockholder of 

the companies that own WGEA and WRJM-FM, he is liable for any 

infringement occurring at the stations. 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, 756 F.2d 801, 811 (11th 

Cir.1985) (citation omitted); see also Chi-Boy Music v. Towne Tavern, Inc.,

779 F.Supp. 527, 530 (N.D.Ala.1991) (Hancock, J.). 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.” 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. 

Mizell's no-personal-participation defense is meritless. 

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Defendants also attempt to diminish their liability by claiming that they lacked willful intent 

to infringe. In support of this argument, defendants point out that the infringing performances were 

part of satellite broadcasts over which they had no control and that some of the infringing songs 

were not played in their entirety. Again, the Court has already explicitly rejected these defenses in 

the Simpleville Music case: 

Admittedly, five of the songs in this case were broadcast during syndicated 

radio shows, while one song was broadcast as part of a national television 

commercial. Nevertheless, “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.) (where defendant was liable for copyright infringement for airing an 

NBC commercial that played “This Will Be (An Everlasting Love)” in the 

background without permission). 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. 

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

The record in this case is equally clear: the defenses raised in Defendants’ Response are 

meritless. Defendants appear to want plaintiffs to engage in a never-ending game of “gotcha,” 

forcing plaintiffs to continually provide further proof of defendants’ infringing behavior. As a 

practical matter, the plaintiffs cannot record every instance of defendants’ infringing conduct; the 

cost of obtaining such evidence would be too high. That is one reason why courts in "ASCAP" 

cases generally award statutory damages equal to two to three times the license fee defendants 

would have paid if they had been properly licensed -- no specific proof of infringing performances 

other than performances of the songs in suit is required. See Plaintiffs Memorandum in Support of 

Summary Judgment, pp. 16-18. Here defendants have already been sued three times and still refuse 

to obey the Copyright Law. The result has been an expensive burden to plaintiffs and an inordinate 

expenditure of the Court’s valuable time. 

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For the reasons stated above and in Plaintiffs’ moving papers, Plaintiffs are entitled to entry 

of summary judgment and an award of injunctive relief, statutory damages, and costs including a 

reasonable attorneys’ fee, as set forth more particularly in their initial motion. 

Dated: March 8, 2007 

Respectfully submitted, 

s/ Dylan C. Black 

Dylan C. Black (ASB-6595-K72D) 

OF COUNSEL: 

James W. Gewin 

BRADLEY ARANT ROSE & WHITE LLP 

1819 Fifth Avenue North 

Birmingham, AL 35203-2199 

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

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CERTIFICATE OF SERVICE

I hereby certify that on March 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 

P.O. Box 2101 

Dothan, Alabama 36302 

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

following non-CM/ECF participants: 

None 

Respectfully submitted, 

s/ Dylan C. Black 

Dylan C. Black (ASB-6595-K72D) 

Bradley Arant Rose & White LLP

1819 Fifth Avenue North 

Birmingham, AL 35203-2104 

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

E-mail: dblack@bradleyarant.com 

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