BMI v. Evies

Case Title and Citation:  Broadcast Music, Inc., et al. v. Evies's Tavern Ellenton, Inc., and Michael Evanoff, Case 8:11-cv-2056-T-17TBM

Court: United States District Court, M.D. Florida, Tampa Division

Document status: District Court grants summary judgment on BMI’s claim(s) for copyright infringement.

Issue or relevant point(s): Whether or not BMI had a proper chain of title and/or the proprietors of the copyrighted works at issue?  Whether or not BMI could/should be awarded fees and costs?

Ruling:  The Court granted summary judgment in favor of BMI as to liability for copyright infringement as to five of the six musical compositions. The Court also awarded BMI statutory damages, attorney’s fees and court costs.

Plaintiff Broadcast Music, Inc. ("BMI") is a "performing rights society" that enters into nonexclusive licenses with the copyright owners to publically perform the musical compositions.  BMI has acquired the nonexclusive right to contract with third parties (i.e., broadcasters, music halls, bar owners, restaurants, etc.) to perform these musical compositions at their establishments.  Defendant Evie's Tavern Ellenton, Inc. ("Evie's"), and its owner Michael Evanoff (“Evanoff”) were sued for copyright infringement as a result of public performance of the musical compositions without a license.  Prior to litigation, BMI sent multiple cease and desist letters to Evie's, but Evie's continued performing the copyrighted songs without paying the appropriate royalty.

In its analysis, the Court iterated a plaintiff alleging unauthorized public performance of a copyrighted musical composition, must show: 

1)  the originality and authorship of the compositions involved;
2)  compliance with all formalities required to secure a copyright under Title 17, United States Code; 
3)  that plaintiffs are the proprietors of the copyrights of the compositions involved in the action;
4)  that the compositions were performed publicly by the defendant; and 
5) that the defendant did not receive permission from any of the plaintiffs or their representatives for such performance.

At this stage, the Court found that the third prong as the only issue in this case worth consideration. the Court analyzed whether material issues of fact were present with respect to the chain of title for each of the six musical compositions.   After review, the Court stated summary judgment was appropriate for 5 of 6 of the works because there was no material issue of fact as to the chain of title in those works.

BMI sought statutory damages of $3,000 per infringement, for a total of $18,000.  It wasundisputed that BMI has extended a considerable effort to inform Evie's of the legal implications of its actions, but Evie's chose not to act.  Evie's was fully aware its acts constituted infringement of copyrighted material, but remained unresponsive until the filing of this suit.

The Court considered the following in calculating damages:

1)  blameworthiness (innocent or willful);
2)  expense saved and profits reaped by the infringer;
3)  revenue lost due to infringement; and
4)  the deterrent value of the damage award.

After weighing the factors in light of the evidence at the stage of the proceeding, the Court readily granted statutory damages approximate to three (3) times the asserted licensing fee of $5,651.10 for a total of $16,953.30.  In doing so the Court commented that such an award was within its province, especially since it would adequately serve the statutory purpose and discourage wrongful conduct.

Jointly and Severally
The Court found Evie's and Evanoff jointly and severally liable for the damages.  Mr. Evanoff, as the 100% owner andmanager of Evie's, had the ability to oversee and supervise all of the employees that worked at Evie's, and had a financial interest in all the musical performances.  The Court made reference to Sailor Music v. Mai Kai of Concord, Inc., 640 F.Supp. 629, 633 (D.C.N.H. 1986), which provided “[i]t is well established that a corporate officer will be liable as a joint tortfeasor with the corporation in a copyright infringement case where the officer was the dominant influence in the corporation, and determined the policies which resulted in the infringement.”

Attorneys’ Fees
BMI also sought fees and costs.  The Court found an award of attorneys’ fees and cost appropriate, noting that while recovery of fees is not automatic, such an award is justified for the prevailing party in cases that are “faithful to the purposes of the Copyright Act.”[1]
In its determination, the Court considered standard factors of frivolousness, motivation, objective unreasonableness, the need to compensate the prevailing party, and the need to deter the conduct of the losing party.

The Court found: the infringement by Evie’s was done with knowledge; the infringement resulted in a hotly contested legal action; BMI exerted substantial effort, prior to the lawsuit, in notifying the defendants and demanding that their infringement activities cease.  Based on these efforts, the Court noted the matter could have been resolved for a relatively small amount of money.

This is yet another case where use of copyrighted material with knowledge can result in extensive legal issues for an infringer.  Moreover, when an “entity” is on the hook, there are little to no impediments in finding individuals jointly responsible.

It is worth noting that Evie’s filed an appeal claiming there were issues of material fact related to its “innocence”.  The Appeal Court affirmed the summary judgment, and clarified that even with a finding of ‘innocence’, the statutory damage range available to the discretion of a district court is still a range of $200 - $30,000 per infringement.[2]  The Appeal Court further pointed out one of the factors the lower court considered was “blameworthiness” (i.e., the question of innocence or willfulness).

The defendants in this case are not unlike many other infringers that think “innocence” means damages are automatically reduced to $200.  To the contrary, under certain circumstances, even when a defendant proves “innocent infringement”, a district court can still award $30,000 per infringement.[3]  When certain criteria are met, innocent infringement can be barred by statute, and is entirely moot with an election of actual damages.[4]

[1] See Fogerty v. Fantasy, Inc., 510 U.S. 517, at n. 19 (1994).
[2] BMI v. Evie’s, Court of Appeals, 11th Circuit 2014 (see
[3] See
[4] Id.