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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 

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BROADCAST MUSIC, INC., et al., 

Plaintiffs-Appellees, 

v. 

MEADOWLAKE, LTD., et al., 

Defendants, 

ROY E. BARR, 

Defendant-Appellant. 

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No. 13-3933 

Appeal from the United States 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. 

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COUNSEL 

ON BRIEF: Robert E. Chudakoff, ULMER & BERNE LLP, Cleveland, Ohio, for Appellees. 

Roy E. Barr, Canton, Ohio, pro se. 

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OPINION

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SUTTON, Circuit Judge. A restaurant played 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 restaurant for the infringement. 

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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 restaurant. 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 customers. 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 bringing in live performers. Less known for its 

taste for compliance with the copyright laws, it hosts performances of the music without getting 

the copyright owners’ permission. These performances 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 royalties on behalf of its members. Over three years, BMI sent 

Rafters more than a score of letters, 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 magistrate judge handle the case. The district 

court granted summary judgment to BMI. 

The one wrinkle in the case, and the key source of Roy’s appeal, is that he did not 

perform any of the copyrighted music. The bands that played at the restaurant and the people 

who turned on the recordings did that. In interpreting the Copyright Act against its common law 

background, however, courts have developed a handful 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 doctrines, a defendant becomes vicariously liable 

for a direct infringement of a copyright “by profiting 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 vicarious liability asks whether the 

defendant had “the right and ability to supervise the infringing conduct.” Gordon, 345 F.3d at 
No. 13-3933 Broadcast Music, et al. v. Meadowlake, et al. Page 3 

925. Roy does not dispute that, as the company’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 customers 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 customers 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, managed 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 unquestionably could have supervised and hence 

stopped the infringement. He instead let the infringement go on while reaping the profits from it. 

Keep in mind, moreover, a key purpose of vicarious liability. A copyright holder can seldom 

identify (let alone get relief from) the guitarist who strummed his tune or the bartender who 

turned on his recording. Vicarious liability responds to this reality by shifting the costs of 

copyright enforcement from the holder of the copyright to those in a better position to police the 

infringing conduct. That rationale applies not just to the restaurant’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 judgment will simply encourage [him] to do so, thus 

placing responsibility where it can and should be effectively 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 the 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 involves 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 business makes a difference. The legal structure of a 

business—corporation, limited liability company, 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 these complications. Roy does not suggest that the 

structure of his business sapped his authority over, 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 vicarious liability, the classification of his business does not (at least 

in general) exempt him from liability. It thus 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 infringement at his restaurant while refusing to 

exercise his right to stop it. And so either 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 considered 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.