Broadcast Music v. Rockingham Venture CV-94-70-JD 05/26/95 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Broadcast Music, Inc., et al.

v. Civil No. 94-70-JD

Rockingham Venture, Inc., d/b/a Rockingham Park

O R D E R

The plaintiffs. Broadcast Music, Inc. ("BMI"); Dingletown

Music, a Division of Frank Gari Productions, Inc.; Alley Music

Corp.; Trio Music, Inc.; Andrew Gold and Charles Plotkin, a

partnership d/b/a Luckyu Music; Acuff-Rose Music, Inc.; Irving

Music, Inc.; Paul Hardy Kennerley, d/b/a Littlemarch Music; EMI

Blackwood Music, Inc.; Scoop Enterprises, Inc., d/b/a Bruiser

Music; and Ensign Music Corp. bring this copyright infringement

action against defendant, Rockingham Venture, Inc., d/b/a

Rockingham Park ("Rockingham") pursuant to

et

seg. (West 1977 & Supp. 1994) ("Copyright Act").1

1The suit alleges infringement of seven musical compositions owned by the plaintiffs. The musical compositions and their respective authors are: (1) "The Oprah Winfrey Theme" by Frank Gari Productions (plaintiff Dingletown Music, a Division of Frank Gari Productions, Inc.); (2) "Good Lovin'" by Arthur Resnick and Rudy Clark (plaintiffs Alley Music Corp. and Trio Music Co., Inc.); (3) "Thank You For Being A Friend" by Andrew Gold (plaintiff Andrew Gold and Charles Plotkin, a partnership d/b/a Luckyu Music); (4) "When Will I Be Loved" by Phil Everly (plaintiff Acuff-Rose Music, Inc.); (5) "Hillbilly Rock" by Paul (continued...) The plaintiffs seek to enjoin the defendants from future

infringement and also request damages, costs, and attorney's

fees. The court's jurisdiction is based on

,

1338 (West 1993). Before the court are plaintiffs' motion for

summary judgment (document no. 11) and defendant's motion for

summary judgment (document no. 15).

Background

Plaintiff BMI is a nonprofit organization which acquires and

licenses the nonexclusive public performance rights of certain

copyrighted musical compositions ("BMI Music"). Plaintiffs'

Memorandum of Law in Support of Summary Judgment ("Plaintiffs'

Memorandum for Summary Judgment") at 2. The other plaintiffs own

the copyright to the various musical compositions which are the

subject of this lawsuit.

Under an agreement with these

copyright owners, BMI licenses the performance rights to

establishments including concert halls, restaurants, nightclubs

and hotels.

(•••continued) Kennerley (plaintiffs Irving Music, Inc. and Paul Hardy Kennerley d/b/a Littlemarch Music); (6) "We Just Disagree" by Jim Krueger (plaintiffs EMI Blackwood Music, Inc. and Scoop Enterprises, Inc. d/b/a Bruiser Music); and (7) "Gentle On My Mind" by John Hartford (plaintiff Ensign Music Corp.).

2 The defendant Rockingham owns and operates the Rockingham

Park thoroughbred racing track in Salem, New Hampshire.

Defendant's Memorandum of Law in Objection to Plaintiffs' Motion

for Summary Judgment ("Defendant's Memorandum in Opposition") at

2. In addition to the track, Rockingham sponsors horse racing

gambling operations, concession areas and restaurants and lounges

where food and beverages are served. See

. In its

restaurants and lounges Rockingham has installed television sets

at individual tables and booths. Each television set is

connected to closed-circuit television racing coverage and is

also capable of receiving traditional television programming

broadcast over-the-air.

. An individual occupying a

booth or table where a television set is located has the ability

to choose to watch either closed-circuit racing coverage or over-

the-air television transmissions.

In contrast, television

sets located in other areas of the racing facility are tuned only

to the closed-circuit television channels that broadcast racing

programs.

On March 8, 1991, BMI informed the defendant by letter that

Rockingham was reguired to obtain authorization for those

copyrighted musical compositions performed publicly at the racing

facility and that this could be accomplished by executing a

3 licensing agreement with BMI. Id.2 The defendant did not enter

into a license agreement since it did not play music throughout

the racing facility.

.

On April 26, 1991, September 13, 1991, December 2, 1991,

June 29, 1992, and November 30, 1992, BMI mailed additional

letters to the defendant urging it to enter into a license

agreement. Plaintiff's Motion for Summary Judgment, Exhibits A-

F. The defendant did not enter into an agreement and, on

December 1, 1992, BMI mailed a letter to the defendant

instructing it to cease use of BMI-licensed music.

Exhibit

G.

Sometime between December 1, 1992 and April 2, 1993, the

defendant mailed a check in the amount of $1,818 to BMI along

with an unsigned license agreement. BMI returned the check with

a letter dated April 2, 1993, stating that the check would not be

accepted since the defendant did not sign the license agreement.

Exhibit H. On June 8, 1993, BMI sent the defendant another

letter informing the defendant to cease use of BMI-licensed

music.

Exhibit I. On June 25, 1993, BMI again mailed a

letter to the defendant urging it to enter into a license

2The defendant does not deny receipt of any correspondence that BMI claims to have mailed.

4 agreement with BMI and, once again, the defendant did not enter

into an agreement. See

Exhibit J.

On June 17, 1993, June 18, 1993, and October 1, 1993, BMI

representative Mark Cornaro personally heard the performance of

seven BMI-licensed compositions during visits to the racing

facility. Declaration of Cornaro ("Cornaro Affidavit"). After

Cornaro's visits on June 17, 1993, and June 18, 1993, BMI

informed the defendant by a letter sent by overnight courier on

July 8, 1993, that copyright infringement had occurred at the

racing facility. Plaintiffs' Motion for Summary Judgment,

Exhibit K.

On December 1, 1993, BMI mailed a letter to the defendant's

attorney stating that it would file a lawsuit if the defendant

did not enter into a license agreement.

Exhibit L. BMI

commenced this lawsuit on behalf of itself and the other

plaintiffs on March 29, 1994.

Discussion

Before the court are the cross-motions of the parties for

summary judgment. The plaintiffs assert in their motion that

there are no genuine disputes of material facts as to the

defendant's infringement of their copyrighted musical

compositions on June 17, 1993, June 18, 1993, and October 1,

5 1993, and that they are entitled to judgment as a matter of law.

Plaintiffs' Memorandum for Summary Judgment at 4-9.

Conversely, the defendant urges summary judgment on the

grounds that the undisputed factual record indicates that, as a

matter of law, the plaintiffs will not be able to satisfy each

element reguired to prevail in a copyright infringement action.

Defendant's Memorandum in Support of Motion for Summary Judgment

("Defendant's Memorandum for Summary Judgment") at 7-8. In the

alternative, the defendant asserts that even if the plaintiff can

satisfy the elements of copyright infringement, it is shielded

from liability by operation of the "homestyle exemption" of

(5) and, therefore, is entitled to judgment as a

matter of law.

.

Summary judgment is appropriate when the "pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c). "The burden is on the moving party to establish the lack

of a genuine, material factual issue, and the court must view the

record in the light most favorable to the nonmovant, according

the nonmovant all beneficial inferences discernable from the

evidence." Snow v. Harnischfeger Corp.,

(1st

6 Cir. 1993), cert, denied, 115 S. C t . 56 (1994) (citations

omitted). Once the moving party has met its burden, the

nonmoving party "must set forth specific facts showing that there

is a genuine issue for trial[,]" Anderson v. Liberty Lobby, Inc.,

(1986) (citing Fed. R. Civ. P. 56 (e) ), or

suffer the "swing of the summary judgment scythe." Jardines

Bacata, Ltd. v. Diaz-Marquez,

(1st Cir.

1989). "In this context, 'genuine' means that the evidence about

the fact is such that a reasonable jury could resolve the point

in favor of the nonmoving party, Anderson,

;

'material' means that the fact is one 'that might affect the

outcome of the suit under the governing law.1" United States v.

One Parcel of Real Property,

(1st Cir. 1992)

(guoting Anderson,

).

The Copyright Act,

et seg. (West 1977 &

Supp. 1994), protects

original works of authorship fixed in any tangible medium of expression . . . from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

(a) (Supp. 1994). Works of authorship include

"musical works, including any accompanying words" and "sound

recordings."

at § 102(a)(2), (7).

Under the Copyright Act, copyright owners possess the

exclusive rights to authorize a public performance of their

7 musical compositions and the violation of this right constitutes

infringement. Id. at §§ 106, 501(a). The legal or beneficial

owners of a copyright may protect their interest by bringing a

private action for infringement occurring while they are the

owner of the copyright. Id. at § 501(b) .3 As a remedy,

copyright owners may seek an injunction against future

infringement, statutory damages, costs, and attorney fees. Id.

at §§ 502, 504 (c), 505.

To prevail in a copyright infringement action, the

plaintiffs must establish five elements:

(1) the originality and authorship of the compositions involved; (2) compliance with the formalities of the Copyright Act ; (3) that plaintiffs are the proprietors of the copyrights of the compositions involved; (4) that the compositions were performed publicly; and (5) that the defendant had not received proper authorization for performance of the compositions.

Merrill v. County Stores, Inc.,

(D.N.H.

1987) (citing Sailor Music v. Mai Kai of Concord, Inc.,

(D.N.H. 1986)); see Jobete Music Co. v. Massey,

(M.D.N.C. 1992) (citing Hulex Music v.

3Generally, a work must be registered with the Copyright Office before an infringement action may be brought. See

; 2 Melville Nimmer & David Nimmer, Nimmer on Copyright § 7.16[B] (1994). Santv,

(D.N.H. 1988)); Chi-Bov Music v.

Towne Tavern, Inc.,

(N.D. Ala. 1991) .

The pending motions require the court to examine each

element of copyright infringement to determine whether either

party is entitled to summary judgment on the record as it

presently exists.

I. Originality and Authorship and Compliance with Copyright

Formalities

The plaintiffs may satisfy the elements of originality and

authorship and compliance with copyright formalities by producing

a certificate of copyright registration, which is prima facie

evidence of the ownership and validity of the copyright.

In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate.

(c) (West 1977); Sandwiches, Inc. v. Wendy's

Int'1, Inc.,

(E.D. Wis. 1987); see Chi-

Bov Music,

; Sailor Music,

. Once the plaintiffs establish a presumption of validity,

the burden shifts to the defendant to rebut the presumption of

proper copyright registration. Hasbro Bradley, Inc. v. Sparkle

Tovs, Inc.,

(2d Cir. 1985) (citations omitted); Knickerbocker Toy Co. v. Winterbrook Corp.,

(D.N.H. 1982); 3 Nimmer at § 12.11[B]. The defendant may

rebut the presumption by showing, for example, that the

plaintiffs had not registered their musical compositions within

five years after first publication or that the plaintiffs had not

properly deposited their compositions with the Copyright Office.

3 Nimmer at § 12.11[B]; see

(c).4

In this case the plaintiffs have submitted photocopies of

the certificates of copyright registration for the musical

compositions at issue. See Declaration of Judith Saffer ("Saffer

Affidavit")a Exhibit A. The defendant has not responded with

evidence, such as untimely registration or improper deposit with

the Copyright Office, to rebut the presumption of copyright

ownership and validity, and compliance with the formalities of

the Copyright Act. The court finds that there exists no genuine

dispute of material fact regarding originality and authorship or

copyright compliance and, therefore, the first two elements of

copyright infringement have been established as a matter of law.

II. Proprietorship of Musical Compositions

4Nimmer states that "[t]he case law has yet to settle upon a consistent formulation of what evidence satisfies the defendant's burden." 3 Nimmer at § 12.11[B][2]. Since the defendant has not come forward with evidence to rebut this element, the court need not address the issue.

10 In cases where the plaintiffs are also the authors of their

musical compositions the court may accept the copyright

registration statement as prima facie evidence of proprietorship.

Broadcast Music, Inc. v. Moor-Law, Inc.,

(D. Del. 1980); see Chi-Bov Music,

; Sailor

Mu sic,

; 3 Nimmer at § 12.11[C]. However,

where the plaintiffs are assignees of previously registered

copyrights, the court reguires additional evidence beyond the

registration statements to find that the plaintiffs are the

proprietors for purposes of satisfying the third element. Moor-

Law,

; 3 Nimmer at § 12.11[C].

The plaintiffs, with the exception of BMI, have submitted

the Saffer Affidavit and copies of their copyright registrations

as evidence that they are the proprietors of their respective

musical compositions.

Each of the musical compositions listed on line 2 of the Schedule of Plaintiffs' Complaint was registered with the Copyright Office on the date listed in line 5. A registration certificate bearing the number listed on line 6 was issued by the Copyright Office to the Plaintiff listed on line 4 or predecessor in interest.

Saffer Affidavit at 2. The defendant has not proffered evidence

to rebut the affidavit. The court finds that the plaintiffs,

with the exception of BMI, are the proprietors of their

respective musical compositions.

11 BMI, as assignee of previously registered copyrights, also

relies on the Saffer Affidavit as evidence that it is a

proprietor of the compositions.

On the date listed on line 8 of Schedule I, BMI had been granted, by the other Plaintiffs, the right to publicly perform these compositions and to issue public performance license agreements to music users.

Id.5 Again, the defendant has not challenged the affidavit nor

argued that BMI is not a proprietor of the musical compositions.

The court finds that there is no genuine dispute of material fact

relative to the guestion of proprietorship and, therefore,the

plaintiffs have established the third element of copyright

infringement as a matter of law.

III. Public Performance

To establish the fourth element of copyright infringement,

the plaintiff must submit evidence that the musical compositions

were "performed publicly." Chi-Bov Music,

;

Sailor Mu sic,

.6

5The court notes that the reference to the Schedule by Saffer in her affidavit does not list a line 8. However, the defendant has not challenged the veracity of the affidavit.

6Courts have included a "for profit" reguirement with the public performance element. E.g., Broadcast Music, Inc. v. Allis,

(S.D. Miss. 1986) (guotations and citations omitted) (a "performance at a restaurant to which the public is admitted and where food and beverages are sold is (continued...)

12 The plaintiffs assert that any performance transmitted on

the televisions is necessarily a public performance because the

booths and tables containing the television sets are located in

public restaurants and lounges and are in close physical

proximity to the other racetrack patrons. See Plaintiffs'

Memorandum in Opposition at 3-4. The plaintiffs argue that,

unlike a hotel room, occupants of these booths and tables have no

reasonable expectation of privacy and all activities conducted in

these areas -- including the broadcast of over-the-air television

-- is a public performance within the view of others and within

the meaning of the Copyright Act.

The defendant alleges that the television sets at issue are

located at private booths and tables and are provided primarily

to view those racing events transmitted through closed-circuit

television. Defendant's Motion in Opposition at 8-11;

Defendant's Memorandum for Summary Judgment at 8-11. Although it

concedes that the television sets may be tuned to receive over-

6(...continued) deemed to be given 'publicly for profit'"). Here, the performances at issue may be considered "for profit" in that the defendant installed television sets at booths and tables located within the dining facilities. Affidavit of Edward M. Callahan ("Callahan Affidavit") at 5 6. In recent years, however, some courts sitting in the First Circuit have not reguired plaintiffs to satisfy the "for profit" element of the prima facie case of copyright infringement. See Pedrosillo Music v. Radio Musical, Inc.,

(D.P.R. 1993); Gnossos Music v. Pi Pompo, 13 U .S .P .Q .2d 1539, 1540 (D. Me. 1989).

13 the-air television stations, the defendant contends that it lacks

control over the television sets because the customer occupying

the booth or table alone decides whether to change the channel

from a closed-circuit broadcast to view an over-the-air

broadcast.

Finally, the defendant argues that its booths

and tables are legally analogous to hotel rooms where parties

view television with an expectation of privacy.

Under the Copyright Act, to characterize a musical

performance as "public" means

(1) to perform it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of family and its social acguaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or different times.

. To transmit is to "communicate [a

performance] by any device or process whereby images or sounds

are received beyond the place from which they are sent."

; Broadcast Music, Inc. v. Claire's Boutigues,

Inc.,

(7th Cir. 1991), cert, denied 112 S.

C t . 1942 (1992). Moreover, "or otherwise communicate" has been

construed to relate to the "transmit" clause, so that "a public

performance at least involves sending out some sort of signal via

14 a device or process to be received by the public at a place

beyond the place from which it is sent." Columbia Pictures

Indus., Inc. v. Professional Real Estate Investors, Inc., 8 66

F .2d 278, 282 (9th Cir. 1989).

In making a determination of whether a performance is

public, the courts of appeals in at least two circuits have

considered the relationship of the performance to the "nature" of

the location where the performance occurred. Video Views, Inc.

v. Studio 21, Ltd.,

(7th Cir.), cert, denied,

112 S. C t . 181 (1991) ("[T]he proper inquiry is directed to the

nature of the place in which private video booths are located,

and whether it is a place where the public is openly invited.");

Columbia Pictures Indus., 866 F.2d at 281 (although hotel is open

to the public, the rooms where alleged infringement occurred

enjoyed "substantial degree of privacy, not unlike [people's] own

homes"). The determination of whether a performance is public a

question for the finder of fact. See Video Views,

(describing jury instruction).

The plaintiffs assert that they sent a BMI representative,

Mark Cornaro, to Rockingham Park on June 17, 1993, June 18, 1993,

and October 1, 1993, to determine whether the defendant was

performing BMI music in public. See Declaration of Stevens

("Stevens Affidavit") at 3. According to his affidavit, Cornaro

15 is familiar with the BMI repertoire and, based on this

familiarity, witnessed the public performance of BMI music during

visits to the racetrack. Cornaro Affidavit at 1. The defendant

does not dispute that Cornaro attended Rockingham Park on the

dates of the alleged infringement. Likewise, the defendant has

not submitted evidence that would call into guestion the veracity

of Cornaro's affidavit to the extent that the musical

compositions were broadcast and, therefore, performed on the

television sets. See Callahan Affidavit at 5 4.7

The plaintiffs also rely on an affidavit submitted by Edward

M. Callahan, the defendant's vice-president and general manager.

The plaintiffs assert that the photographs appended to the

affidavit illustrate that each booth or table is located in "open

common areas" and that the occupants do not enjoy an expectation

of privacy similar to a hotel room. Plaintiffs' Memorandum in

Opposition at 3-4; See Callahan Affidavit at Exhibit 1.

Conversely, the defendant argues that the televisions at the

booths and tables are not public, but rather enjoy an expectation

of privacy similar to one's home or a hotel room. Defendant's

7Under the Copyright Act, a musical composition is "performed" when it is recited, rendered or played, "either directly or my means of any device or process[.]"

. The defendant concedes that the broadcast of over-the-air television constitutes a performance within the meaning of the Copyright Act. Defendant's Memorandum in Opposition at 8, fn.3.

16 Memorandum in Opposition at 3. In support of its position, the

defendant submits the Callahan Affidavit. In his affidavit,

Callahan testifies that

[t]he primary function of Rockingham Park's television sets is to allow our customers to view races over a closed-circuit channel from their box or table. The 13" television set at each box or table is only capable of being viewed and are only meant to be viewed by the individual patrons at the box or table.

It is the individual patrons of Rockingham Park who actually control the television sets -- and what is viewed on them -- from their private table or box, just as they would in the comfort of their own homes.

Callahan Affidavit at 55 6, 7. Finally, the defendant asserts

that the photographs appended to the Callahan Affidavit depict

the private nature of the booths and tables. See

at 5 8,

Exhibit 1.

The court finds that there exists a genuine dispute of

material fact over whether the broadcast of over-the-air

television programming on the defendant's television sets

constitutes a public performance. Thus, the fourth element of

copyright infringement may not be determined on a motion for

summary judgment and, instead, must be resolved by the finder of

fact.

IV. Unauthorized Performance

17 To satisfy the fifth element of copyright infringement a

plaintiff must demonstrate that the defendant lacked authority to

perform publicly the musical compositions at issue on the date of

the alleged infringement. Sailor Mu sic,

.

Authorization to perform publicly a musical composition may be

granted contractually through a license agreement. See Chi-Bov

Mu sic,

(ASCAP licensed public performance of

copyrighted music); Broadcast Music, Inc. v. Pine Belt Inv.

Developers, Inc.,

(S.D. Miss. 1987) ("BMI

licenses the performance of such copyrighted musical compositions

. . . primarily by means of a blanket license agreement"); Sailor

Mu sic,

(defendant sought license agreement

to perform live music at restaurant).

In the present case, BMI submits the affidavit of its

employee, Lawrence Stevens, as evidence that the defendant was

not authorized to perform the musical compositions on the dates

at issue. Plaintiffs' Memorandum for Summary Judgment at 6. In

his affidavit, Stevens testifies that on April 26, 1991,

September 13, 1991, December 2, 1991, June 29, 1992, and November

30, 1992, BMI had offered the defendant a license to perform BMI-

licensed musical compositions. Stevens Affidavit at 2. Stevens

further testifies that the defendant did not respond to the

license offers and that on December 1, 1992, and on June 8, 1993,

18 BMI mailed the defendant a letter demanding that it cease use of

BMI-licensed music.

The defendant has not adduced evidence to challenge the

veracity of the Stevens Affidavit and, indeed, has not even

briefed the authorization element of copyright infringement.

Rather, the defendant states that it "opted not to enter into a

license agreement with BMI because, unlike many other

establishments, Rockingham Park does not play music throughout

its facility." Defendant's Memorandum in Opposition at 3-4;

Defendant's Memorandum for Summary Judgment at 3-4.

The court finds that at all relevant times the defendant

lacked the authorization to perform publicly BMI music and, as

such, the fifth element of copyright infringement is established

as a matter of law.

V. Homestyle Exemption

The defendant contends that even if the plaintiffs establish

each element of copyright infringement, it is not liable by

operation of the "homestyle exemption" of the Copyright Act.

Defendant's Memorandum in Opposition at 11-13; Defendant's

Memorandum for Summary Judgment at 11-13. The plaintiffs counter

that the defendant does not gualify for protection under the

19 "homestyle exemption." Plaintiffs' Memorandum in Opposition at

5-6.

When a prima facie case of copyright infringement has been

established, a defendant may still avoid liability under the

"homestyle exemption" of

(5). Claire's

Boutiques,

. The exemption provides that

there is no infringement of a copyright where there is

a communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless -- (A) a direct charge is made to see or hear the transmission; or (B) the transmission thus received is further transmitted to the public[.]

(5). The purpose of the exemption

is to exempt from copyright liability anyone who merely turns on, in a public place, an ordinary radio or television receiving apparatus of a kind commonly sold to members of the public for private use. The basic rationale of this clause is that the secondary use of the transmission by turning on an ordinary receiver in public is so remote and minimal that no further liability should be imposed.

Claire's Boutigues,

(citing H.R. Rep. No. 94-

1733, 94th Cong., 2d Sess. 75 (1976), reprinted in 1976

U.S.C.C.A.N. 5810, 5816).

To successfully invoke the exemption, an otherwise liable

defendant must demonstrate: (1) the use of a single receiving

apparatus; (2) use of that apparatus is of a kind commonly used

20 in a private home; (3) that the transmission is provided free of

charge; and (4) that the transmission is not "further

transmitted" to the public."

.

The defendant argues that the "homestyle exemption" applies

because each television set is of a type commonly used at home by

its patrons. Defendant's Memorandum in Opposition at 12-13;

Defendant's Memorandum for Summary Judgment at 12-13. Moreover,

each television set is under the control of the customer

occupying the booth or table and, thus, the defendant does not

assert control over the television set.

Finally, the

defendant argues that it does not charge a fee for the use of the

television and each television set is only for the use of the

patrons sitting at the table or booth where the television is

located.

The plaintiffs argue that the "homestyle exemption" is

inapplicable because there are "several hundred 13" television

sets on the premises" of Rockingham Park and not just a "single

receiving apparatus." Plaintiff's Memorandum in Opposition at 5.

Given the court's ruling, supra, that this case may not be

resolved on a motion for summary judgment, the court leaves to

another time the determination as to whether the "homestyle

exemption" would apply if the plaintiffs are ultimately able to

21 satisfy each element of their prima facie copyright infringement

claim.

Conclusion

The plaintiffs have established the copyright infringement

elements of originality and authorship, compliance with copyright

formalities, proprietorship of musical compositions, and that the

defendant lacked authorization to perform BMI-licensed music.

Thus, copyright infringement elements one, two, three, and five

are satisfied as a matter of law. However, the court finds that

a genuine issue of material fact exists as to the fourth element,

namely whether the musical compositions at issue were performed

publicly. Therefore, the court grants in part and denies in part

the plaintiffs' motion for summary judgment (document no. 11) and

denies the defendant's motion for summary judgment (document no.

15) .

Counsel and the parties are ordered to engage in good faith

efforts to resolve this case by agreement. A joint status report

concerning those efforts shall be filed by July 1, 1995.

SO ORDERED.

Joseph A. DiClerico, Jr. Chief Judge May 26, 1995 cc: Andrew D. Dunn, Esguire Teresa C. Tucker, Esguire

22