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Decision Karaoke

Decision Karaoke

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Published by mschwimmer
decision sdny default copyright karaoke
decision sdny default copyright karaoke

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Published by: mschwimmer on Jul 18, 2009
Copyright:Attribution Non-commercial

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07/27/2010

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------XKAREN MANNO,:Plaintiff,:07 Civ. 10360 (BSJ) (GWG)-v.-:REPORT ANDRECOMMENDATIONTENNESSEE PRODUCTION CENTER, INC.,:Defendant.:---------------------------------------------------------------X
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Karen Manno (“Manno”) brings this action seeking damages for copyrightinfringement against Tennessee Production Center, Inc. (“Tennessee Production”). Mannoalleges that Tennessee Production violated the Copyright Act through the unauthorized sale of karaoke recordings that included her composition. Because Tennessee Production failed toanswer the complaint in this case, the only remaining issues relate to damages. For the reasonsthat follow, Manno should be awarded $52,273.94 in statutory damages, costs, and attorney’sfees.I.BACKGROUNDA.Procedural HistoryOn November 15, 2007, Manno filed this suit seeking damages for copyrightinfringement against Tennessee Production, which does business as “Chartbuster Karaoke.” SeeComplaint, filed Nov. 15, 2007 (Docket # 1) (“Compl.”). When Tennessee Production failed toanswer, Manno moved for entry of default. See Notice of Motion, filed Mar. 13, 2008 (Docket# 5); Plaintiff’s Memorandum of Law in Support of Her Motion for Entry of a Default, filedMar. 13, 2008 (Docket # 7); Affidavit in Support of Plaintiff’s Motion for Entry of a Default,filed Mar. 13, 2008 (Docket # 8). After the entry of default was granted, see Order Granting
 
See Plaintiffs’ Proposed Findings of Fact and Conclusions of Law, filed Nov. 10, 2008
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(Docket # 16) (“Proposed Findings”); Plaintiff’s Reply Memorandum of Law in Further Supportof Her Motion for an Order Granting a Judgment by Default Against Defendant Tennessee2Entry of Default, filed Apr. 1, 2008 (Docket # 9), Manno moved for a default judgment, see Notice of Motion, filed May 30, 2008 (Docket # 10); Affidavit in Support of Plaintiff’s Motionfor Judgment By Default, filed May 30, 2008 (Docket # 11); Plaintiff’s Memorandum of Law inSupport of Her Motion for an Order Granting a Judgment By Default Against DefendantTennessee Production Center, Inc., filed May 30, 2008 (Docket # 12). The motion for a default judgment was granted by means of a document labeled “Order and Default Judgment.” SeeOrder and Default Judgment, filed Sept. 19, 2008 (Docket # 14). That Order contained provisions ordering injunctive relief against Tennessee Production but referred the issue of damages to the undersigned. Id.The Court thereafter issued an Order setting forth the procedure to be used by Manno tofix the monetary portion of her default judgment. See Scheduling Order for Damages Inquest,filed Sept. 29, 2008 (Docket # 15) (“Scheduling Order”), at 1-2. The Order required Manno tomake certain submissions supporting her request for damages against Tennessee Production. Seeid. The Order also gave Tennessee Production 30 days to respond. See id. at 2. The Order further notified all parties that, absent a request from either side that the Court hold a hearing, theCourt would conduct any inquest regarding damages based solely upon the parties’ writtensubmissions. Id.Manno made submissions in accordance with this Order – and in accordance with a later Order requiring further briefing on the issue of attorney’s fees. See Order, filed June 1, 2009(Docket # 27). Tennessee Production submitted opposition papers opposing Manno’s request
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Production Center, Inc., filed Jan. 26, 2009 (Docket # 26) (“Pl. Reply”); Affidavit in Support of Plaintiff’s Application for Attorney Fees, filed June 15, 2009 (Docket # 29) (“Abrams Aff.”).See Memorandum of Law of Defendant in Opposition to Plaintiff’s Proposed Findings
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of Fact and Conclusions of Law, filed Jan. 5, 2009 (Docket # 23) (“Def. Opp’n”); Affidavit of Lori Casteel, filed Jan. 5, 2009 (Docket # 21) (“Casteel Aff.”); Affidavit of Norbert Stovall, filedJan. 5, 2009 (Docket # 22) (“Stovall Aff.”).In accordance with 17 U.S.C. § 501(b), the Court required Manno to serve notice of 
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this action with a copy of the complaint upon Allan. See Order, filed July 2, 2009 (Docket # 30).Manno was unable to locate Allan, however. See Affidavit of Karen Manno, filed July 15, 2009(Docket # 31).3for statutory damages and contending that it is entitled to a jury trial.
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B.FactsIn light of Tennessee Production’s default, Manno’s properly-pleaded allegations, exceptthose relating to damages, are accepted as true. See, e.g., Cotton v. Slone, 4 F.3d 176, 181 (2dCir. 1993). Thus, the following statement of facts is taken largely from the complaint.Manno co-authored, with non-party Gary Allan, a musical composition titled “The One.”Compl. ¶ 7. Manno co-owns with Allan the rights to the lyrics and music of this song. Id. ¶ 8;see also Certificate of Registration (annexed as Ex. 1 to Compl.).
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Tennessee Production manufactures and distributes karaoke packages through retail, mailorder, and internet sales. Compl. ¶ 10. Such packages typically include compact discs thatcontain graphics, known in the industry as “CD+G’s.” Stovall Aff. ¶ 4. These discs includenon-original recordings of the words and music of famous songs, as well as song versions withmusic but no vocals. Compl. ¶ 11. Additionally, the discs can produce a visual image of thelyrics – sometimes alone and sometimes with graphics – that are synchronized to be shown on ascreen in time with the music. Id. The purpose of the karaoke package is to enable buyers tosing in time with the music. Id. ¶ 10.

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