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Broadcast Music, Inc. v. Carey-On Saloon, LLC

United States District Court, D. Colorado

February 7, 2014

CAREY-ON SALOON, LLC d/b/a CAREY-ON SALOON, and LESHAWN RENEE CAREY, individually, Defendants.


RAYMOND P. MOORE, District Judge.

THIS MATTER comes before the Court on Plaintiffs' Motion for Summary Judgment ("Motion") (ECF No. 24) on their action for copyright infringement under 17 U.S.C. § 101 et seq. ("Copyright Act"). Plaintiffs allege they own copyrights on certain musical compositions, or the right to license the public performance rights of such copyrighted compositions, which were infringed by Defendants' unauthorized public performance of seven musical compositions. The Court has jurisdiction pursuant to 28 U.S.C. § 1338(a). Upon consideration of the Motion and other papers filed, and the applicable law, the Motion is granted for the reasons stated herein.


Plaintiff Broadcast Music, Inc. ("BMI") is a "performing rights society" which licenses the right to publicly perform copyrighted musical compositions on behalf of the owners of these works. The other Plaintiffs are copyright owners ("Owners") of musical compositions from whom BMI acquired the non-exclusive public performance rights to the seven musical compositions at issue in this case: American Soldier; Call Me the Breeze; Courtesy of the Red, White and Blue; Neon Moon; Okie from Muskogee; Whiskey Bent and Hell Bound; and Who's Your Daddy (collectively, the "Seven Compositions"). Each of the Seven Compositions has been registered with the Copyright Office. By means of "blanket license agreements, " BMI grants to users, such as owners and operators of concert halls, restaurants, nightclubs and hotels, the right to publicly perform copyrighted works in BMI's repertoire, including the Seven Compositions.

Defendant Carey-On Saloon, LLC ("Defendant LLC") owns, operates and has a direct financial interest in the Carey-On Saloon located at 6829 Space Village Avenue, Colorado Springs, Colorado. Defendant LeShawn Renee Carey ("Defendant Carey") is sole owner of Defendant LLC, owner of the Saloon, and responsible for virtually every aspect of the Saloon's operation.

Prior to June 2011, Defendant LLC held a license ("Prior License"), signed by Defendant Carey, for the public performance of music in BMI's repertoire at the Saloon when it was located at 3350 N Chestnut Street, Colorado Springs, Colorado ("Prior Saloon"). When the Prior Saloon stopped operating, the Prior License was cancelled.

On or about June 2011, BMI learned that the Saloon had opened at Space Village Avenue. From June 2011 forward, BMI repeatedly contacted Defendants and informed them they needed to obtain permission for public performances of copyrighted music. BMI also offered to enter into a license agreement with Defendants, which they declined to accept. On October 5, 2011, BMI instructed Defendants to cease and desist from public performances of music licensed by BMI. Thereafter, BMI again notified Defendants they needed to obtain a license for their music use. Although Defendants did not obtain a license from BMI, they did have a license to perform music through the American Society of Composers, Authors and Publishers ("ASCAP") (another performing rights society) and for the jukebox utilized at the Saloon.

On April 19, 2012, Defendants had the right and ability to direct and control the Saloon's activities. On that night, the Saloon was open to the public and BMI sent investigator Daniel Topping to generate an audio recording of the songs played at the Saloon that night along with a written report. Investigator Topping was unable to identify the names of any of the songs performed while he was present at the Saloon but was able to identify two of the artists from the songs he heard that night. Investigator Topping also identified the disc jockey and Karaoke performer as "Annie, " Anne Gavin, whom Defendants had instructed to play only music licensed by ASCAP. Defendant Carey was present that night but claims not to know whether those instructions were followed.

Investigator Topping submitted the audio recording to BMI. The recording was, in turn, submitted to BMI Performance Identification employee Joannah Carr who listened to the recording to identify any recorded musical works and any live performances. Based on Employee Carr's knowledge of the genre of music contained in the recording, she identified the 51[1] songs performed that night at the Saloon, which included the Seven Compositions.

Defendants had no license to perform the Seven Compositions. Further, BMI had not issued a license to any person authorizing the performance of any of the Seven Compositions at the Saloon. There is also no evidence that the Owners of any of the Seven Compositions issued such a license to any person. If Defendants had entered into a license agreement with BMI in June 2011, when BMI first contacted them, the estimated license fees between July 2011 and June 2013 would have been approximately $2, 610.00.


"Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106, 1116 (10th Cir. 2013) (internal alterations and quotation marks omitted). In evaluating the summary judgment motion, the court "view[s] the facts, and all reasonable inferences those facts support, in the light most favorable to the nonmoving party." Simmons v. Sykes Enter., Inc., 647 F.3d 943, 947 (10th Cir. 2011). If there is no genuine issue of material fact in dispute, the Court determines the correct application of the substantive law and examines the factual record and reasonable inferences therefrom in the light most favorable to the nonmoving party. E.E.O.C. v. Abercrombie & Fitch Stores, Inc., supra at 1116; Oldenkamp v. United Am. Ins. Co., 619 F.3d 1243, 1246 (10th Cir. 2010).

At the summary judgment stage, an affidavit is proper if its contents - the eyewitness account of the affiant - are admissible. Bryant v. Farmers Ins. Exchange, 432 F.3d 1114, 1122 (10th Cir. 2005). The affidavit may not contain expert testimony unless the affiant has first been designated an expert witness under Fed.R.Civ.P. 26(a)(2). Id. at 1122. Any non-expert testimony must comply with Fed.R.Evid. 701, i.e., rationally based on the ...

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