Buy This Entire Record For
Broadcast Music, Inc. v. Butcher Enterprises, Inc.
United States District Court, D. Colorado
July 31, 2019
BROADCAST MUSIC, INC., a Delaware corporation, HYDROPONIC MUSIC, a partnership, SONY/ATV SONGS LLC, a Delaware company d/b/a Sony/ATV Acuff Rose Music, ARC MUSIC CORP., a Delaware corporation, PEERMUSIC III LTD., a Delaware company, EMI CONSORTIUM SONGS, INC., a New York corporation d/b/a EMI Longitude Music, CONCORD MUSIC GROUP, INC., a Delaware corporation d/b/a Jondra Music, MJ PUBLISHING TRUST, a Delaware company d/b/a Mijac Music, GIBB BROTHERS MUSIC, a partnership, CROMPTON SONGS, a sole proprietorship, EMBASSY MUSIC CORPORATION, a New York corporation, CYANIDE PUBLISHING, a partnership, UNIVERSAL-SONGS OF POLYGRAM INTERNATIONAL, INC., a Delaware corporation, RONDOR MUSIC INTERNATIONAL, INC., a California corporation d/b/a Irving Music, BOCEPHUS MUSIC, INC., a Tennessee corporation, TOKECO TUNES, a sole proprietorship, PLUNKROCK MUSIC, a sole proprietorship, LYNCH MOB MUSIC, a sole proprietorship, BLACK CASPER MUSIC, a sole proprietorship, SONGS OF UNIVERSAL, INC., a California corporation, ISH MUSIC, a sole proprietorship, HEY RUDY MUSIC PUBLISHING, a New York corporation, A Division of other Cheese Factor Record, LTD, and THE JIMMY FRANKS PUBLISHING COMPANY, a sole proprietorship, Plaintiffs,
BUTCHER ENTERPRISES, INC., a Colorado corporation d/b/a Sand Creek Lounge, and K. RICHARD ENGEL, individually a/k/a Richard Engel, Defendants.
KRISTEN L. MIX MAGISTRATE JUDGE
matter is before the Court on the parties' Joint
Motion for Entry of Consent Decree
[#18] (the “Motion”). Pursuant to 28
U.S.C. § 636(c), the parties in this civil action
consented to have the undersigned conduct all proceedings.
See [#20, #21]. The Court has reviewed the Motion
[#18], the entire case file and the applicable law and is
sufficiently advised in the premises. For the reasons set
forth below, the Motion [#18] is DENIED without
initiated this action on December 12, 2018, for copyright
infringement under the United States Copyright Act of 1976,
as amended, 17 U.S.C. Section 101 et seq. (the
“Copyright Act”). In short, Plaintiffs allege
that Defendants committed copyright infringement by publicly
performing, without authorization, numerous copyrighted
musical compositions which Plaintiffs own outright or own
licensing rights. Compl. [#1] ¶¶ 33-41.
Defendants filed a Joint Answer to Plaintiffs' Complaint
[#13] (the “Answer”) in which they generally deny
Plaintiffs' assertions and raise numerous affirmative
defenses. The Court initially set a Scheduling Conference in
the case for March 28, 2019. [#8]. The Scheduling Conference
was subsequently reset and ultimately vacated based on the
parties' representation that a settlement had been
reached and the parties' filing of the instant Motion
[#18]. See Minute Orders [#16 and #19].
Motion, the parties jointly move the Court to enter a
proposed Consent Decree which the parties have attached to
the Motion. See [#18] at 5-9. The parties state that
entry of the Consent Decree has been agreed to by all parties
and is part of a settlement agreement (the “Settlement
Agreement”) which appears to resolve all claims in the
case. Id. at 2. Specifically, the parties stipulate
in the proposed Consent Decree that: (1) Plaintiff Broadcast
Music, Inc., licenses the rights to public performance, and
that the other Plaintiffs own the copyrights, in sixteen
identified musical compositions; (2) immediately upon
execution of the Consent Decree, Defendant Butcher
Enterprises shall enter into a “License” with
Plaintiff Broadcast Music, Inc. and pay the annual fee set
forth in the “License”; (3) the parties shall
abide by the terms of the Settlement Agreement; (4) the Court
shall retain jurisdiction over the parties for purposes of
(a) enforcing the Consent Decree and the associated
Settlement Agreement which includes a “Consent
Judgment, ” (b) resolving any disputes arising
therefrom or associated therewith, and (c) adjudicating
“any further litigation involving the issues raised in
this litigation”; (5) each party shall bear its own
fees and costs relating to this action; and (6) this matter
will be dismissed with prejudice “except as otherwise
indicated” in the Consent Decree. Id. at 6-8.
respect to the final stipulation regarding the disposition of
this case, the parties make clear in the Motion that they
request the Court to dismiss this matter with prejudice
pursuant to Fed.R.Civ.P. 41(a)(2) on entry of the Consent
Decree but that the Court maintain jurisdiction to enforce
the Settlement Agreement between the parties. Id. at
2. The parties do not cite any legal authority in support of
the Motion or entry of the Consent Decree. See generally
Id. at 1-2. Moreover, the parties do not provide the
Court with copies of the Settlement Agreement, the
“License, ” or the “Consent Judgment”
referred to in the Consent Decree.
Standard of Review
consent decree is primarily a means by which parties settle
their disputes without having to bear the financial and other
costs of litigating.” Local No. 93, Int'l
Ass'n of Firefighters v. City of Cleveland, 478 U.S.
501, 528-29 (1986). A consent decree that is entered in
federal court “must be directed to protecting federal
interests.” Frew v. Haskins, 540 U.S. 431, 437
(2004). Specifically, the Supreme Court has stated that a
federal consent decree must: (1) spring from and serve to
resolve a dispute within the court's subject matter
jurisdiction; (2) come within the general scope of the case
based on the pleadings; and (3) further the objectives of the
law on which the claims are based. Firefighters, 478
U.S. at 525.
‘a federal court is more than a recorder of contracts
from whom private parties may purchase
injunctions.'” Funimation Entm't v.
Timmons, No. 13-cv-00533-MSK-MJW, 2014 WL 6873061, at *1
(D. Colo. Oct. 24, 2014) (quoting Kasper v. Board of
Election Commissioners, 814 F.2d 332, 338 (7th Cir.
1987)). “Thus, when presented with a request to enter a
Consent Decree, ‘the judge must satisfy [herself] that
the decree is consistent with the Constitution and laws, does
not undermine the rightful interests of third parties, and is
an appropriate commitment of the court's limited
resources.” Id. (quoting Kasper, 814
F.2d at 338). Ultimately, “[t]he district court . . .
is not obliged to approve every proposed consent decree
placed before it.” United States v. State of
Colo., 937 F.2d 505, 509 (10th Cir. 1991) (citation
omitted). Given that the issuance of a consent decree bears
the imprimatur of judicial approval, “the district
court must ensure that the agreement is not illegal, a
product of collusion, or against the public interest.”
Id.; see also United States v. Weiss, No.
11-cv-02244-RM-MJW, 2013 WL 5937912, at *2 (D. Colo. Nov. 6,
2013). Moreover, the district court must determine that the
decree is “fair, adequate, and reasonable before it is
approved.” Id.; see also United States v.
Telluride Co., 849 F.Supp. 1400, 1402 (D. Colo. 1994)
(stating that the relevant standard is whether the proposed
decree “is fair, reasonable and equitable and does not
violate law or public policy.”).
a district court “may either approve or deny the
issuance of a consent decree, ” a court is generally
“not entitled to change the terms of the agreement
stipulated to by the parties.” Id. (citation
omitted). Therefore, if a court discerns a problem with the
consent decree, the court “should advise the parties of
its concern and allow them an opportunity to revise the
reviewing the parties' Motion [#18] and the proposed
Consent Decree, the Court finds that it is not able to enter
the Consent Decree for the following reasons.
and foremost, the parties have provided no argument or legal
authority to support the entry of the Consent Decree as an
order of the Court. See generally Motion [#18].
There is no showing by the parties that the Consent Decree is
“directed to protecting federal interests.”
Frew, 540 U.S. at 437. While the Court is satisfied
that it has jurisdiction over this dispute arising from the
Copyright Act, the parties have not made any argument as to
whether the Consent Decree “comes within the general
scope of the case based on the pleadings” or furthers
the objectives of the Copyright Act on which Plaintiffs'
claims are based. Firefighters, 478 U.S. at 525.
Moreover, although there is no evidence to suggest that the
Consent Decree is illegal, a product of collusion, or against
the public interest, the parties have made no showing that
the Consent Decree is “fair, adequate, and
reasonable.” United States v. State of Colo.,
937 F.2d at 509.
this case is still in its early stages, as no Scheduling
Conference has yet been held and discovery has not yet
commenced. The record before the Court simply contains
Plaintiffs' allegations in the Complaint [#1] and the
general denials and affirmative defenses raised in
Defendants' Answer [#13]. “Thus, at this stage, the
contours and weight of the Plaintiff[s'] claims (and the
Defendants' defenses) remain unknown to the Court,
measured only by the Complaint's allegations and the
Answer's denials.” Funimation Entm't,
2014 WL 6873061, at *1 (denying parties' joint request to
enter consent decree in copyright action where there had