All Nations Music v. Christian Family Network, Inc. (989 F. Supp. 863, 1997)

OPINION AND ORDER ON PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

MILES, Senior District Judge.

‘Thou shalt not steal.’ has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed—

Grand Upright Music Ltd. v. Warner Bros. Records, Inc., 780 F.Supp. 182, 183 (S.D.N.Y.1991).

Defendant Christian Family Network, Ine. (“CFN”) operates a commercial radio station in Battle Creek, Michigan, known by the call letters WOLY-AM, under license granted by the Federal Communications Commission. Despite describing WOLY as a “small, religious station” whose “main emphasis is on paid Ministry Programs,” Answer to Complaint, ¶ s 4, 7, CFN and its president and principal stockholder, attorney James Els-man, who is also named as a defendant herein, have violated the commandment “Thou shalt not steal,” as well as the copyright laws of this country. This court has no jurisdiction over the defendants’ violation of the former, but does have jurisdiction over this action arising from their violation of the law. There being no genuine question remaining that they have violated the law, the court hereby GRANTS the plaintiffs’ motion for summary judgment as to liability and entitlement to injunctive relief. However, for the reasons to follow, the court holds in abeyance any ruling on the plaintiffs’ motion for statutory damages and attorneys’ fees and costs.

I

The plaintiffs, who are the owners of copyrighted musical compositions, filed this action on December 12, 1996 alleging claims of copyright infringement based on WOLY’s unauthorized public performances of five of their copyrighted works on August 7, 1996. In their original answer filed on January 22, 1997, the defendants set an unfortunate tone for this proceeding, among other things characterizing plaintiffs’ complaint as being “much ado about nothing” and asserting a number of affirmative defenses, most of which being of such questionable merit that they have since been withdrawn. Now, the defendants’ only defense (if it may be called that) appears to be that they were in a state of “confusion” when they stole plaintiffs’ property and that they now truly want to pay for the right to play plaintiffs’ songs. However, they contend, they have been stymied in their alleged attempts to do so by the true villain in this action, that “big Licensing Organization,” (described as such in Defendants’ Brief in Opposition to Plaintiffs’ Motion for Shmmary Judgment, at p. 1) the American Society of Composers, Authors and Publishers (“ASCAP”), of which plaintiffs are members. According to the defendants, that “big Licensing Organization” ASCAP just will not send them a current bill for fees due.

The defendants have conceded, as they must, that although they once signed a license agreement with ASCAP, they “stopped paying” license fees, id. at p. 3, and “no fees were paid for a few years[.]” Id. at p. 4. The plaintiffs have submitted, in support of their motion, evidence showing that at the relevant time the defendants were in default of their license agreement for failure to pay fees and provide required annual reports; evidence showing that plaintiffs provided defendants with estimates of the license fees owed; evidence showing that ASCAP terminated the license; and evidence showing that the plaintiffs warned the defendants of their potential liability under copyright law if WOLY were to broadcast copyrighted musical compositions without permission.

The defendants have not responded to this evidence. Instead, the defendants would have the court believe that this case could be concluded if someone would just send them a bill to pay. The court wishes the resolution of this matter could be achieved so easily. However, the evidence shows that ASCAP repeatedly demanded payment of license fees from CFN, and that CFN was nonresponsive to these demands.

Though defendant Elsman chooses to own a radio station, he claims to have “no hand in the day-to-day operations” of the station, “being a full-time lawyer.” Affidavit of James Leonard Elsman (“Elsman Aff.”), ¶ 2. Although Elsman assesses that his background is of “little relevance,” Elsman Aff., p. 2, the court notes that his Martindale-Hubbell biography indicates that he received his J.D. from the University of Michigan and has practiced law in the Detroit metropolitan area for over 35 years. His “sophisticated” practice, which covers the state of Michigan as well as the Detroit area, consists principally of litigation and class actions. Martindale-Hubbell Law Directory,