PAUL A. ENGELMAYER, District Judge:
Plaintiffs Broadcast Music, Inc. ("BMI"), MJ Publishing Trust, Beechwood Music Corporation, and Sony/ATV Latin Music Publishing LLC bring this action for copyright infringement against defendants Prana Hospitality, Inc. ("Prana"), Rajiv Sharma, and Payal Sharma. Plaintiffs claim that defendants, the owners of a New York City restaurant/bar, violated the Copyright Act, 17 U.S.C. §§ 101 et seq., and willfully infringed their copyrights, by publicly performing three of plaintiffs' copyrighted musical compositions without authorization.
Plaintiffs now move for summary judgment on their claims, and seek an injunction prohibiting defendants from further infringing any copyrighted musical compositions licensed by BMI. Plaintiffs also request an award of statutory damages under 17 U.S.C. § 504(c), as well as attorneys' fees and costs under 17 U.S.C. § 505.
For the reasons that follow, plaintiffs' motion for summary judgment is granted. The Court also grants plaintiffs' motions for an injunction, attorneys' fees, and costs, and awards statutory damages.
BMI is a performing rights society that licenses the right to publicly perform a
The other plaintiffs are the copyright owners of the musical compositions that are the subject of this lawsuit: "Suavemente," "Billie Jean," and "We Will Rock You." Pl. 56.1, ¶¶ 17-19. BMI has acquired public performance rights from these plaintiffs for these songs. Id. ¶ 20.
Prana is a New York corporation that operates and maintains an establishment, Pranna, located at 79 Madison Avenue in New York City, which serves as a restaurant, bar, and lounge. Pl. 56.1, ¶ 3. At all relevant times, Rajiv Sharma has been an owner and the Chief Executive Officer of Prana, id. ¶ 9, and Payal Sharma has been an owner and officer of Prana, id. ¶ 10.
At some point before September 2012, BMI learned that Pranna was hosting public musical performances by DJs without a license from BMI or permission from the copyright owners whose works were being performed. Mullaney Decl. ¶ 3. On September 13, 2012, BMI sent a letter to Pranna advising defendants of their obligations under the Copyright Act, offering to enter into a blanket license agreement with them, and enclosing a license agreement and fee schedule. Id. BMI received no response. Id. In October 2012, BMI sent defendants additional letters of the same nature. Id. ¶ 4. On November 19, 2012, BMI received an email from Pranna's business manager, Grace Tayeh, stating that Pranna "already [had] licensing through the music provider." Id. ¶ 5; id. Ex. A. A BMI representative replied to Tayeh later that day, informing her that any license possessed by Pranna did not cover DJ performances. Id. ¶ 5; id. Ex. D, at 8.
Between September 2012 and October 2014, BMI sent defendants a total of 48 letters via email, FedEx, and first class mail, initially offering to enter into a license agreement with defendants, and later directing defendants to cease and desist from further public performances of BMI-licensed music. Pl. 56.1, ¶ 4.
On May 17, 2014 and October 11, 2014
To date, Pranna has not obtained a license from any plaintiff, and continues to permit public performances of musical compositions at its establishment, Pl. 56.1, ¶¶ 15-16, including, plaintiffs allege, songs licensed by BMI, Mullaney Decl. ¶ 24.
On March 17, 2015, plaintiffs filed a complaint, bringing three claims of copyright infringement against defendants. Dkt. 1. On May 21, 2015, defendants answered. Dkt. 11.
On July 24, 2015, plaintiffs served defendants with plaintiffs' first set of requests for admission, interrogatories, and requests for production of documents. Pl. 56.1, ¶ 1; see Lower Decl., Exs. A-C. On August 14, 2015, defendants served plaintiffs with defendants' first set of interrogatories and requests for production of documents. Pl. 56.1, ¶ 2. On September 16, 2015, plaintiffs responded to defendants' discovery requests. Id. Discovery closed on October 16, 2015. Dkt. 15. To date, defendants have not responded to plaintiffs' discovery requests. Pl. 56.1, ¶ 1.
On December 9, 2015, plaintiffs filed a motion for summary judgment, Dkt. 21, as well as a memorandum of law in support, Dkt. 22 ("Pl. Br."). Plaintiffs also filed a Rule 56.1 Statement, Pl. 56.1; a declaration by plaintiffs' counsel, Lower Decl.; a declaration
To prevail on a motion for summary judgment, the movant must "show[ ] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the burden of demonstrating the absence of a question of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
To survive a summary judgment motion, the opposing party must establish a genuine issue of fact by "citing to particular parts of materials in the record." Fed. R. Civ. P. 56(c)(1)(A); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009). "[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Hicks v. Baines, 593 F.3d 159, 166 (2d Cir.2010) (internal quotation marks and citation omitted). "Only disputes over facts that might affect the outcome of the suit under the governing law" will preclude a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether there are genuine issues of material fact, the Court is "required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Johnson v. Killian, 680 F.3d 234, 236 (2d Cir.2012) (citing Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003)).
Plaintiffs argue that they are entitled to summary judgment on each claim of copyright infringement because the undisputed facts show that defendants permitted unauthorized public performances at Pranna of three musical compositions within BMI's repertoire. Plaintiffs are correct.
The Copyright Act gives the owner of a copyright the exclusive right to perform, or to authorize others to perform, the copyrighted work. 17 U.S.C. § 106(4). A public performance made without the requisite license or authorization from the copyright owner constitutes an infringement of the work. Broad. Music, Inc. v. R Bar of Manhattan, Inc., 919 F.Supp. 656, 659 (S.D.N.Y.1996) (citing Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir.1963)).
To prevail on a claim of copyright infringement based on an unauthorized public performance, a plaintiff must establish: (1) originality and authorship; (2) compliance with all formalities of the Copyright Act; (3) plaintiff's ownership of the copyrights at issue; (4) defendant's public performance of the compositions for profit; and (5) defendant's lack of authorization for the public performance. Broad. Music, Inc. v. 315 W. 44th St. Rest. Corp., No. 93 Civ. 8182 (MBM), 1995 WL 408399, at *2 (S.D.N.Y. July 11, 1995) (collecting cases). Here, plaintiffs have satisfied each of these requirements for the three musical
The first three elements are established by the declaration of BMI's assistant vice president of legal affairs, Hope M. Lloyd, which states that the music publisher plaintiffs own each copyright implicated by this lawsuit, and have granted BMI the right to publicly perform the compositions and to issue public performance license agreements to music users. Lloyd Decl. ¶¶ 4-5. Attached to Lloyd's declaration are copies of the relevant certificates and assignments, which set forth the names of the authors and publishers of each song, the date of copyright registration, and the registration number. Id. Ex. A. These documents constitute "prima facie evidence of the validity of the copyright and of the facts stated in the certificate." 17 U.S.C. § 410(c); see Gund, Inc. v. Applause, Inc., 809 F.Supp. 304, 307 (S.D.N.Y.1993) ("Certificate [of Registration] is prima facie evidence of the copyrightability of the work and the validity of such copyright, shifting to [the defendant] the burden of proving the contrary."); BMI v. 44th St. Rest. Corp., 1995 WL 408399, at *2 (finding that official certificates satisfy the first three elements of a claim of copyright infringement). Defendants do not dispute these facts. See Lower Decl., Ex. A ¶¶ 21-28; Pl. 56.1, ¶¶ 17-20.
The element of public performance is established by Braunscheidel's Certified Infringement Reports and Davis's Certification Performance Identification Declaration, which attest that "Suavemente," "Billie Jean," and "We Will Rock You" were publicly performed at Pranna on the evenings of May 17, 2014 and October 11, 2014. See Mullaney Decl. ¶¶ 15, 17; id., Exs. B, C; BMI v. 44th St. Rest. Corp., 1995 WL 408399, at *3 ("The declaration of plaintiff BMI's agent, ... as well as reports he filed after inspecting the Cafe on July 30 and August 5, 1993 ..., establish the element of public performance of the nine songs."); Broad. Music, Inc. v. Haibo, Inc., No. 10 Civ. 240S (WMS), 2012 WL 843424, at *2-4 (W.D.N.Y. Mar. 12, 2012) (relying on certified reports to establish public performance element). Moreover, defendants have admitted, through their failure to respond to plaintiffs' requests for admission, that the musical compositions were publicly performed on those dates. See Lower Decl., Ex. A, ¶¶ 16-20; Pl. 56.1, ¶¶ 13-14. In light of these admissions, and the fact that Braunscheidel entered Pranna and observed the DJ performances as a member of the public, the Court will not credit the unsubstantiated assertion in defendants' legal brief that the alleged performances occurred at private events. See Defs. Br. ¶ 4.
As to the "for profit" requirement, this element is satisfied "[a]s long as the [venue] was established as a profit-making enterprise, and some nexus may be found between the performances and the general business of defendants." BMI v. 44th St. Rest. Corp., 1995 WL 408399, at *3 (citing Herbert v. Shanley Co., 242 U.S. 591, 595, 37 S.Ct. 232, 61 L.Ed. 511 (1917) ("Whether [music] pays or not, the purpose of employing it is profit, and that is enough.")); accord Broad. Music, Inc. v. JJ Squared Corp., No. 11 Civ. 5140 (JFB), 2013 WL 6837186, at *5 (E.D.N.Y. Dec. 26, 2013) (finding profit element satisfied where "no reasonable factfinder could conclude that the band performed `with no expectation of profit'"). Here, it is undisputed that Pranna is operated as a for-profit establishment. Pl. 56.1, ¶¶ 7-8. Moreover, the record shows that, on both nights in question, Braunscheidel was required to pay a fee for admission to Pranna. See Mullaney Decl., Ex. B, at 1; id. Ex. C, at 1. Plaintiffs have, therefore, established that the performances generated
The final element, lack of authorization, is established by the declaration of BMI's vice president for sales and licensing, Brian Mullaney, who avers that defendants have not, at any relevant time, possessed licenses from BMI to perform the musical compositions in question, and that the performances were not otherwise authorized. Mullaney Decl. ¶¶ 3, 14, 23-24. Defendants' assertion that they possessed a license for background music is of no consequence, because, by its express terms, any such license would not cover live music or music performed by DJs. See Defs. Br. ¶¶ 3, 7; id., Ex. A (letter from Gray V indicating that "[a]s a Gray V client, [Pranna] would be covered for background music when using the Gray V provided content (not live music, DJs or television)"). Moreover, through their failure to respond to plaintiffs' requests for admission, defendants have admitted that they did not have a license for a DJ to publicly perform any BMI-licensed songs on May 17, 2014 or October 11, 2014. See Lower Decl., Ex. A, ¶¶ 78-79.
In sum, plaintiffs have demonstrated the absence of any disputed facts with respect to the five elements of their copyright infringement claims. They are, therefore, entitled to summary judgment as to liability on each of these claims with respect to any defendant responsible for the public performance of the works in question.
The Court next considers whether the named defendants may be held liable for the acts of infringement, insofar as these were committed, most immediately, by the DJs that performed at Pranna. "[I]t has long been held that one may be liable for copyright infringement even though he has not himself performed the protected composition." Gershwin Pub. Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1161-62 (2d Cir.1971). Rather, all entities and persons who "participate in, exercise control over, or benefit from" a copyright infringement are jointly and severally vicariously liable as copyright infringers. Sygma Photo News, Inc. v. High Society Magazine, Inc., 778 F.2d 89, 92 (2d Cir. 1985). As the Second Circuit has noted, "the cases are legion which hold the dance hall proprietor liable for the infringement of copyright resulting from the performance of a musical composition by a band or orchestra whose activities provide the proprietor with a source of customers and enhanced income." Shapiro, 316 F.2d at 307.
This is such a case. It is undisputed that Prana operates and maintains Pranna, has the right and ability to direct and control Pranna's activities and to supervise its contractors and employees, and has a direct financial interest in Pranna. Pl. 56.1, ¶¶ 3, 7; see Lower Decl., Ex. A, 1-4; id. Exs. D, E; Dkt. 11 ("Defs. Answer"), ¶ 8. It is further undisputed that Rajiv Sharma and Payal Sharma are officers and owners of Prana and have, at all relevant times, operated and maintained Pranna, had the right and ability to supervise the persons employed by Pranna, and had a direct financial interest in both Prana and Pranna. Pl. 56.1, ¶¶ 8-10; see Lower Decl., Ex. A, ¶¶ 5-14; id. Exs. D-F; Defs. Answer ¶¶ 11-14. Plaintiffs have, therefore, established that all three defendants may be held jointly and severally liable for the acts of copyright infringement that occurred at Pranna. See, e.g., Broad. Music, Inc. v. DFK Entm't, LLC, No. 10 Civ. 1393 (GLS), 2012 WL 893470, at *3 (N.D.N.Y.
Defendants argue that they should not be found liable for any copyright infringement on the part of the DJs who performed the musical compositions because Pranna did not directly employ the DJs or control their performances. Defs. Br. ¶¶ 4, 6. This argument fails because the Second Circuit has held that proprietors are liable for the infringements of performers within their establishment, "whether the [performer] is considered, as a technical matter, an employee or an independent contractor, and whether or not the proprietor has knowledge of the compositions to be played or any control over their selection." Shapiro, 316 F.2d at 307.
Having determined that plaintiffs are entitled to summary judgment against defendants, the Court turns to consider plaintiffs' requested remedies. Plaintiffs seek relief in the form of (1) a permanent injunction, (2) statutory damages, and (3) an award of costs and attorneys' fees. Although defendants (in addition to disputing liability) generally oppose relief, they do not specifically object to any one component of the requested relief.
Plaintiffs seek a permanent injunction prohibiting defendants, and all persons acting under their permission or authority, from further infringing any copyrighted musical compositions licensed by BMI. Pl. Br. 12. Under § 502 of the Copyright Act, the Court may issue an injunction on such terms as it deems "reasonable to prevent or restrain infringement of a copyright." 17 U.S.C. § 502; see Lipton v. Nature Co., 71 F.3d 464, 474 (2d Cir.1995).
Salinger v. Colting, 607 F.3d 68, 77 (2d Cir.2010) (quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006)); Warner Bros. Entm't Inc. v. RDR Books, 575 F.Supp.2d 513, 551-52 (S.D.N.Y.2008). Here, plaintiffs have satisfied each of these requirements.
First, courts routinely find the harm suffered by plaintiffs in copyright cases to be "irreparable" on the theory that lost sales or diminished reputation can be difficult if not impossible to measure. Beastie Boys v. Monster Energy Co., 87 F.Supp.3d 672, 677 (S.D.N.Y.2015) (collecting cases); see also Salinger, 607 F.3d at 81 ("Harm might be irremediable, or irreparable, for many reasons, including that a loss is difficult to replace or difficult to measure, or that it is a loss that one should not be expected to suffer."). The Court is similarly satisfied here that there is no practical way of determining the actual damages sustained by plaintiffs as a result of defendants' infringement, and that the harm endured is one that plaintiffs "should not be expected to suffer." Salinger, 607 F.3d at 81. This factor, therefore, favors injunctive relief.
Second, the Court finds that remedies at law are not adequate to compensate plaintiffs for their injuries. Courts in this Circuit have consistently found monetary damages inadequate where the defendant poses a significant threat of future infringement. See, e.g., Hounddog Prods., LLC v. Empire Film Grp., Inc., 826 F.Supp.2d 619, 633 (S.D.N.Y.2011) (finding remedies at law inadequate where there was "no evidence to suggest that [defendant] has stopped or will stop" infringing plaintiffs' copyrights); Pearson Educ., Inc. v. Vergara, No. 09 Civ. 6832 (JGK) (KNF), 2010 WL 3744033, at *4 (S.D.N.Y. Sept. 27, 2010), adopted by Order at Dkt. 21 (S.D.N.Y. May 11, 2011) ("A plaintiff has no adequate remedy at law where, absent an injunction, the defendant is likely to continue infringing its copyright(s)." (internal quotation marks and citation omitted)); Ortho-O-Vision, Inc. v. Home Box Office, Inc., 474 F.Supp. 672, 686 (S.D.N.Y.1979).
Here, the record strongly suggests a significant threat of future copyright infringements at Pranna. It is undisputed that defendants continue to permit the public performance of musical compositions at Pranna, and, to date, have not entered into a license with BMI. See Lower Decl., Ex. F; Mullaney Decl. ¶¶ 23-24; Defs. Answer ¶ 9. Defendants have adduced no evidence to suggest that they have stopped or will stop infringing plaintiffs' copyrights in the future.
Third, the balance of hardships tips overwhelmingly in plaintiffs' favor. Requiring plaintiffs to commence litigation for each future violation would pose a considerable hardship, whereas the Court cannot detect any hardship that an injunction obliging defendants to comply with their legal duties would impose on them. See Beastie Boys, 87 F.Supp.3d at 679 (defendant had no legitimate interest in further dissemination of video that infringed plaintiffs' copyrights). Indeed, to the extent defendants "elect[] to build a business on products found to infringe[,] [they] cannot be heard to complain if an injunction against continuing infringement destroys the business so elected." Mint, Inc. v. Amad, No. 10 Civ. 9395 (SAS), 2011 WL 1792570, at *3 (S.D.N.Y. May 9, 2011) (internal quotation marks and citation omitted); see also Granite Music Corp. v. Ctr. St. Smoke House, Inc., 786 F.Supp.2d 716, 730 (W.D.N.Y.2011) ("[A] permanent injunction should be preferable to Defendants than being repeatedly subject to litigation for future violations.").
Finally, the Court is firmly convinced that injunctive relief here will advance the public's "compelling interest in protecting copyright owners' marketable rights to their work" so as to "encourage[e] the production of creative work." WPIX, Inc. v. ivi, Inc., 691 F.3d 275, 287 (2d Cir.2012) (citing, inter alia, Golan v. Holder, ___ U.S. ___, 132 S.Ct. 873, 890, 181 L.Ed.2d 835 (2012); Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 961, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005)).
The Court, therefore, finds that plaintiffs are entitled to a permanent injunction that prohibits defendants and all persons acting under their permission or authority from further infringing any copyrighted musical compositions licensed by BMI.
In lieu of actual damages, plaintiffs seek statutory damages, pursuant to § 504(c)(1), in the amount of $15,000 for each act of infringement, for a total of $45,000. Pl. Br. 14.
Section 504 of the Copyright Act permits a district court, in its discretion, to award between $750 and $30,000 for each copyright infringed. Island Software and Computer Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 262-63 (2d Cir.2005) (citing 17 U.S.C. § 504(c)(1)); see D.C. Comics Inc. v. Mini Gift Shop, 912 F.2d 29, 34 (2d Cir.1990) ("Within the[] limitations [set forth by § 504(c)(1)] the court's discretion and sense of justice are controlling." (internal quotation marks and citation omitted)).
Where a plaintiff demonstrates that the infringement was committed "willfully," the district court may award as much as $150,000 per infringed work.
Where, as here, the plaintiff does not seek a willfulness enhancement, it is still appropriate for the Court to consider evidence of willfulness in "determining where in the range between $750.00 and $30,000.00 damages should be set." Microsoft Corp., 2010 WL 1049219, at * 1. The Court should also consider:
Bryant v. Media Right Prods., Inc., 603 F.3d 135, 144 (2d Cir.2010).
Statutory damages under the Copyright Act are designed to "discourage
Here, there is considerable evidence that defendants willfully infringed plaintiffs' copyrights. As noted, plaintiffs have shown that between September 2012 and October 2014, BMI sent 48 letters/emails, and made 42 phone calls and four in-person visits to defendants, first alerting defendants of the need to execute a license agreement if they wished to continue playing songs in BMI's repertoire, and later admonishing them to cease and desist their unlawful conduct. Pl. 56.1, ¶¶ 4-5.
This conduct easily establishes that defendants, at the least, "reckless[ly] disregard[ed]" plaintiffs' rights. Island Software, 413 F.3d at 263; see also Broad. Music, Inc. v. Wexford INR LLC, No. 12 Civ. 1253 (GTS), 2014 WL 4626454, at *11-12 (N.D.N.Y. Sept. 15, 2014) (repeatedly ignoring BMI's letters and phone calls, while continuing to perform licensed compositions without authorization, was "objectively unreasonable" and constituted "willful blindness").
Also significant, defendants' failure to respond to plaintiffs' requests for discovery or to seriously engage with this case has hindered the Court's ability to ascertain "the expenses saved, and profits earned, by [defendants]" or "the value of the infringing material." Bryant, 603 F.3d at 144. In light of these considerations, the Court finds that an award of statutory
Plaintiffs request an award of $15,000 per infringement, for a total of $45,000. Pl. Br. 14. This constitutes an amount nearly six times the sum of the licensing fees defendants would have paid BMI between September 2012 and the present. See Mullaney Decl. ¶ 24 (estimating the following fees: (1) $1,811.70 between September 2012 and August 2013; (2) $1,871.10 between September 2013 and August 2014; (3) $1,915.65 between September 2014 and August 2015; and (4) $1,930.50 for the present year). Plaintiffs base this request on out-of-Circuit cases that have awarded, or left in place awards of, damages of approximately six times the licensing fees that the copyright holder originally sought from the infringer. See Pl. Br. 13-14 (citing, inter alia, Broad. Music, Inc. v. M.R.T.P., Inc., No. 12 Civ. 7339 (JFG), 2014 WL 2893203, at *7 (N.D.Ill. June 26, 2014); Sixx Gunner Music v. Quest, Inc., 777 F.Supp.2d 272, 274 (D.Mass.2011); Emi Mills Music, Inc. v. Empress Hotel, Inc., 470 F.Supp.2d 67, 75 (D.P.R.2006)).
However, Second Circuit case law — including numerous cases brought by BMI — reflects that courts in this Circuit commonly award, in cases of non-innocent infringement, statutory damages of between three and five times the cost of the licensing fees the defendant would have paid.
The Court therefore approves a reduced award of $12,500 per infringement, for a total of $37,500, which represents approximately five times the sum of BMI's unpaid licensing fees. In the Court's judgment, this sum, coupled with a permanent injunction, is sufficient to remedy the injuries sustained by plaintiffs, punish defendants for their acts of infringement, and deter others in similar positions from permitting unauthorized public performances of copyrighted musical compositions.
Finally, the Court considers plaintiffs' request for reimbursement of the costs and attorneys' fees incurred in connection with this action. Plaintiffs seek a total fee award of $22,364.41, representing $612.92 in costs and $21,751.49 in attorneys' fees. Pl. Reply. Br. 4.
Section 505 of the Copyright Act authorizes the Court, at its discretion, to award costs and reasonable attorneys' fees to the prevailing party. 17 U.S.C. § 505. In exercising this discretion, the Court may consider, inter alia, "frivolousness, motivation, objective reasonableness
For the reasons already reviewed, the relevant considerations support an award of costs and attorneys' fees to plaintiffs in this case. See, e.g., BMI v. R Bar of Manhattan, 919 F.Supp. at 661 ("considerations of deterrence" supported award of attorneys' fees where defendants willfully disregarded repeated communications by BMI regarding the license requirement); Granite Music Corp., 786 F.Supp.2d at 736-37 ("The plethora of attempts made by ASCAP to secure an executed licensing agreement from Defendants ... establishes... that such copyright infringements were willful. As such, Plaintiffs should be granted an award of costs, including attorneys' fees."); BMI v. DFK Entm't, 2012 WL 893470, at *5 (finding award of attorneys' fees "both appropriate and necessary `to advance [the] considerations of compensation and deterrence,'" where defendant "repeatedly ignored BMI's letters and phone calls" (quoting Fogerty, 510 U.S. at 534 n. 19, 114 S.Ct. 1023)). The Court, therefore, turns to the reasonableness of the award that plaintiffs request.
As to costs, plaintiffs seek reimbursement for $612.92 spent by plaintiffs' counsel in connection with this lawsuit. Pl. Br. 15-16; Pl. Reply Br. 4. To support this request, plaintiffs' counsel submitted an itemization of the costs incurred over the course of this action, including court fees, courier fees, service fees, and transportation costs. See Lower Decl., Ex. G. Having reviewed these disbursements, the Court finds them adequately documented, reasonable, and of the type commonly reimbursed by courts in this District. See, e.g., Run Guo Zhang v. Lin Kumo Japanese Rest. Inc., No. 13 Civ. 6667 (PAE), 2015 WL 5122530, at *1 (S.D.N.Y. Aug. 31, 2015) (awarding $1,483.05 in costs, including filing fees, proof of service, court reporter services, and interpreter costs); Gonzalez v. Scalinatella, Inc., 112 F.Supp.3d 5, 30-31, 2015 WL 3757069, at *23 (S.D.N.Y.2015) (awarding $1,150.60 in disbursements, representing a court filing fee, and transcript, mailing, and transportation costs); Nautilus Neurosciences, Inc. v. Fares, No. 13 Civ. 1079 (SAS), 2014 WL 1492481, at *4 (S.D.N.Y. Apr. 16, 2014) (awarding $5,514.39 in costs, including court fees, administrative fees, photocopying, and legal research expenses).
As to attorneys' fees, plaintiffs seek an award of $21,751.49 for a total of 82.8 hours of work completed by members of Gibbons, P.C. in connection with this action. See Pl. Br. 15-16; Pl. Reply Br. 4; Lower Decl. ¶¶ 7-10; Lower Supp. Decl. ¶ 2. The timekeepers that worked on this matter are: (1) J. Brugh Lower, an associate with approximately seven years of experience and a standard hourly rate of $400; (2) Owen J. McKeon, a director in the firm's intellectual property department with approximately 15 years of experience and a standard hourly rate of $600; (3) Martin Brech, a managing clerk with approximately 20 years of experience and a standard hourly rate of $210; and (4) Fritz
In order to assess the reasonableness of the proposed award, the Court must determine "the lodestar — the product of a reasonable hourly rate and the reasonable number of hours required by the case." Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir.2011); see generally Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010) (describing the "lodestar approach"); see also Crescent Publ'g Group, Inc. v. Playboy Enters., 246 F.3d 142, 150 (2d Cir.2001) (applying lodestar method in copyright infringement case). This "boils down to `what a reasonable, paying client would be willing to pay,' given that such a party wishes `to spend the minimum necessary to litigate the case effectively.'" Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 174 (2d Cir.2009) (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cty. Of Albany, 493 F.3d 110, 112, 118 (2d Cir.2007), amended on other grounds by 522 F.3d 182 (2d Cir.2008)). The reasonableness of an hourly rate is guided by the market rate "[p]revailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). The relevant community is this District. Arbor Hill Concerned Citizens, 522 F.3d at 190-91.
The party seeking attorneys' fees "bears the burden of ... documenting the appropriate hours expended and hourly rates." Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The Court must pay careful attention to the hours for which attorneys seek compensation, and exclude hours that are "excessive, redundant, or otherwise unnecessary." Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir.1998) (quoting Hensley, 461 U.S. at 434, 103 S.Ct. 1933) (internal quotation marks omitted); accord Wong v. Mangone, 450 Fed.Appx. 27, 32 (2d Cir. 2011) (summary order) (upholding reduction based on "duplicative hours").
Here, plaintiffs' counsel has submitted an invoice that "set[s] forth the date on which services were performed, the hours spent, and the nature of the work performed for each attorney and ... paralegal. Such a submission meets the evidentiary threshold for the recovery of attorney's fees." Spalluto v. Trump Int'l Hotel & Tower, No. 04 Civ. 7497 (RJS) (HBP), 2008 WL 4525372, at *7 (S.D.N.Y. Oct. 2, 2008) (adopting report and recommendation); see Lower Decl., Ex. H ("Invoice").
As to the services not included in the flat rates, all such work (amounting to a total of 11.5 hours) was performed by Lower, billing at a discounted hourly rate of $358.05 (for work performed before September 1, 2015) or $372 (for work performed after September 1, 2015). See Invoice, at 3-5; Lower Decl. ¶¶ 8, 12; Lower Supp. Decl. ¶ 2. The Court finds these rates reasonable in light of Lower's seven years of experience and the considerable responsibility he assumed in this action.
In order to assess the reasonableness of the fees generated pursuant to the flat rate agreements, the Court calculated the hourly rates effectively charged by Gibbons P.C. for the work performed by each timekeeper. The "Hours" column of the chart below reflects the number of hours spent by each member of Gibbons P.C. on work covered by the two flat rates. The "Base Rate" column reflects each timekeeper's standard hourly rate.
Hours Base Rate Base Rate Bill Discount Rate Flat Rate Bill
Lower 64.7 $400.00 $25,880.00 $247.92 $16,040.42
McKeon 2.5 $600.00 $1,500.00 $371.88 $929.70
Brech 2.9 $210.00 $609.00 $130.16 $377.46
Sammy 1.2 $205.00 $246.00 $127.06 $152.47
71.3 $28,235.00 $17,500.00
Discount 38.02%
Each of these rates is well within the range of hourly rates approved by other courts in this District for similarly experienced attorneys and paralegals. See, e.g., BMI v. Pamdh, 2014 WL 2781846, at *7 (approving hourly rates of $570 for partner with 15 years' experience in copyright law, $200 for paralegal with 13 years' experience, and $160 for paralegal with two years' experience); Sub-Zero, Inc. v. Sub
Finally, the Court has reviewed the Invoice and concludes that it reflects sound billing practices: It is thorough, detailed, and easy to understand, with no evident duplication of effort. Accordingly, the Court finds the hours that counsel expended reasonable.
The Court thus approves the requested fee award in its entirety.
For the foregoing reasons, plaintiffs' motion for summary judgment is granted in full. It is hereby ordered that defendants, their agents, employees, and all persons acting under their permission or authority are permanently enjoined from infringing, in any manner, the copyrighted musical compositions licensed by BMI. The Clerk of Court is respectfully directed to enter judgment in favor of plaintiffs and against defendants in the amount of $59,864, which represents $37,500 in statutory damages ($12,500 per infringement), $612.92 in costs, and $21,751.49 in attorneys' fees. The Clerk of Court is directed to terminate the motion pending at Dkt. 21 and to close this case.
SO ORDERED.
