1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 14a0118p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

B ROADCAST M USIC , I NC ., et al., Plaintiffs-Appellees ,

v

.

M EADOWLAKE , L TD ., et al., Defendants ,

R OY E. B ARR , Defendant-Appellant

. ┐ │ │ │ │ │ │ │ │ │ │ │ ┘ No. 13-3933

Appeal from the United St ates District Court

for the Northern District of Ohio at Akron. No. 5:12-cv-01024—George J. Limbert, Magistrate Judge. Decided and Filed: June 6, 2014
Before: BOGGS, SUTTON and WHITE, Circuit Judges.

_________________ COUNSEL

ON BRIEF: Robert E. Chudakoff, ULMER & BERNE LLP, Cleveland, Ohio, for Appellees. Roy E. Barr, Canton, Ohio, pro se.

_________________ OPINION

_________________ SUTTON, Circuit Judge. A restaurant pl ayed live and recorded music without permission of the copyright holders. At stake is whether the Copyright Act imposes vicarious liability on the owners of the re staurant for the infringement. 

### >No. 13-3933 Broadcast Music, et al. v. Meadowlake, et al. Page 2

Roy Barr and his son Philip own Meadowlake , a limited liability company that runs Rafters Bar and Grill, a golf-course restaurant in Canton, Ohio. Roy owns 95% of the company and makes all “significant decisions” about the rest aurant. R. 32-4 at 3. Philip owns 5% of the company and manages the restaurant from day to day.
Rafters offers music and dancing for its cust omers. Known for its taste for rock, the restaurant plays everything from Queen and Pink Floyd to ZZ Top and Lynyrd Skynyrd— sometimes turning on a recording, sometimes br inging in live performers. Less known for its taste for compliance with the copyright laws, it hosts performances of th e music without getting the copyright owners’ permission. These performa nces violated the copyright owners’ exclusive right “to perform the copyrighted work[s] publicly.” 17 U.S.C. § 106(4). Rafters’ lapses came to the attention of Broadcast Music, Inc., an organization of songwriters and composers that licenses music and collects royal ties on behalf of its members. Over three years, BMI sent
Rafters more than a score of le tters, warning the restaurant not to infringe its copyrights and offering to license its music. It got no response. BMI sued Roy for copyright infringement. (It sued Meadowlake and Philip as well, but these defendants escaped the lawsuit by declaring bankruptcy.) The parties consented to have a ma gistrate judge handle th e case. The district court granted summary judgment to BMI.
The one wrinkle in the case, and the key s ource of Roy’s appeal, is that he did not perform any of the copyrighted music. The band s that played at the re staurant and the people who turned on the recordings did that. In interpreting the Copyr ight Act against its common law background, however, courts have developed a handf ul of doctrines that make people liable for copyright infringement committed by others. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster , 545 U.S. 913, 930 (2005). Under one of these doctr ines, a defendant becomes vicariously liable for a direct infringement of a copyright “by prof iting from [the] infringement while declining to exercise a right to stop or limit it.” Id. ; see Gordon v. Nextel Commc’ns , 345 F.3d 922, 925 (6th Cir. 2003).
Under these precedents, Roy is vicariously liable for the pervasive copyright infringement at his restaurant. The first half of the test for vi carious liability asks whether the defendant had “the right and ability to supervise the infringing conduct.” Gordon , 345 F.3d atNo. 13-3933 Broadcast Music, et al. v. Meadowlake, et al. Page 3

925. Roy does not dispute that, as the compa ny’s chief (95%) owner and the restaurant’s ultimate decisionmaker, he had the right and ability to supervise the infringing performances.
The second half of the test asks whether the defendant had “an obvious and direct financial interest in the infringement.” Id. Roy does not dispute that he had a financial interest in the infringing performances, which drew more customer s to his restaurant. That makes him liable.

This case indeed falls within the heartland of vicarious liability. In the canonical illustration of the doctrine, the owner of a dance hall became vicariously liable when an orchestra hired to play music for the custom ers performed a copyrighted work. See Sony Corp. of America v. Universal City Studios, Inc. , 464 U.S. 417, 437 n.18 ( 1984). Substitute “restaurant that offers dancing” for “dance hall,” and you have this case.
It makes no difference that Philip, not Roy, ma naged the restaurant from day to day. What matters is whether Roy had “the right and ability ” to supervise the infringement, not whether he in fact supervised it. Gordon , 345 F.3d at 925 (emphasis added). Higher than Philip in the restaurant’s chain of command, Roy unque stionably could have supervised and hence stopped the infringement. He inst ead let the infringement go on while reaping the prof its from it. Keep in mind, moreover, a key purpose of vicari ous liability. A copyright holder can seldom identify (let alone get relief from) the guitari st who strummed his tune or the bartender who turned on his recording. Vicarious liability re sponds to this reality by shifting the costs of copyright enforcement from the holder of the copyri ght to those in a better position to police the infringing conduct. That rationale applies not just to the restau rant’s on-the-scene manager but
also to its off-the-scene owner. The restaurant owner can monitor the infringement better than the blameless copyright holder, and “our judgmen t will simply encourage [him] to do so, thus placing responsibility wher e it can and should be e ffectively exercised.” Shapiro, Bernstein &
Co. v. H.L. Green Co. , 316 F.2d 304, 308 (2d Cir. 1963).
It makes no difference that Roy claims to have known nothing about the infringing performances. A defendant’s ignorance about th e infringement or the performances does not blunt vicarious liability. Gordon , 345 F.3d at 925. The point of the doctrine is to encourage people like Roy to police performances at their restaurants in the first place.No. 13-3933 Broadcast Music, et al. v. Meadowlake, et al. Page 4

It makes no difference that, in some cases, courts have declined to make an owner vicariously liable for infringements involving his business—for example where the owner has a
“nominal title” but “ no real authority.” Brunswick Beacon, Inc. v. Schock-Hopchas Pub. Co. , 810 F.2d 410, 414 (4th Cir. 1987). This case invol ves no such quirks. Roy had full authority over the restaurant, as he acknowledged when he admitted that Philip had no power “to make significant decisions” without his approval. R. 32-4 at 3.
What, finally, of the reality that Roy owns the restaurant through a limited liability company? In one sense, the form of the busines s makes a difference. The legal structure of a business—corporation, limited liability compa ny, partnership, what have you—may affect
whether a defendant satisfies the test for vicarious liability in the first place. Business form might affect a defendant’s right to police the infringement or his financial interest in the infringement. But this case involves none of th ese complications. Roy doe s not suggest that the structure of his business sapped his authority ove r, or dulled his financial interest in, the prohibited performances.

In another sense, however, the form of the business does not make a difference. Once a
defendant meets the test for vicari ous liability, the classi fication of his busine ss does not (at least in general) exempt him from liability. It t hus does not matter whether Ohio’s laws on limited liability companies would make Roy personally liable for wrongs committed by or at his restaurant. Either way, Roy profited from infr ingement at his restaurant while refusing to exercise his right to stop it. And so e ither way, Roy remains vicariously liable. See, e.g. , Pinkham v. Sara Lee Corp. , 983 F.2d 824, 834 (8th Cir. 1992); 3 M. Nimmer, Copyright § 12.04 (2014); 6 W. Patry, Copyright § 21.81 (2014).
Roy, who represents himself, makes a handful of other arguments against the district court’s judgment. We have consid ered them all, and find merit in none of them. We also deny Roy’s motions for appointment of counsel and for summary judgment.

For these reasons, we affirm.