FILED

NOT FOR PUBLICATION JAN 12 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

RANGE ROAD MUSIC, INC.; et al., No. 10-55691

Plaintiffs-counter-defendants D.C. No. 2:09-cv-02059-CAS- - Appellees, AGR

v.

MEMORANDUM *

EAST COAST FOODS, INC.; et al.,

Defendants-counter-claimants - Appellants.

RANGE ROAD MUSIC, INC.; et al., No. 10-55800

Plaintiffs-counter-defendants D.C. No. 2:09-cv-02059-CAS- - Appellees, AGR

v.

EAST COAST FOODS, INC.; et al.,

Defendants-counter-claimants - Appellants.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding

Argued and Submitted December 9, 2011 Pasadena, California

Before: PREGERSON and PAEZ, Circuit Judges, and JONES, District Judge.**

Defendants-Appellants East Coast Foods, Inc. and Herbert Hudson

(collectively, “Defendants”) appeal the district court’s grant of summary judgment

in favor of Plaintiffs-Appellees (collectively, “Plaintiffs”) for eight counts of

copyright infringement, as well as the district court’s award of attorney’s fees and

costs to Plaintiffs. We affirm.

1. Defendants first argue that Plaintiffs’ original complaint was insufficient to

state a claim of vicarious liability for copyright infringement. One “infringes

vicariously by profiting from direct infringement while declining to exercise a right

to stop or limit it.” Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S.

913, 930 (2005). Plaintiffs’ complaint contained “a short and plain statement of the

claim” of vicarious infringement. Conley v. Gibson, 355 U.S. 41, 47 (1957). The

complaint alleged “copyright infringement based on the defendants’ public

performances of copyrighted musical compositions,” and pleaded specific facts to

** The Honorable James P. Jones, United States District Judge for the Western District of Virginia, sitting by designation.

2 establish that the defendants exercised control over and financially benefitted from

the performance venue.

2. Defendants next argue that the district court should have excluded from

evidence the declaration and investigative report by Scott Greene that was the basis

of Plaintiffs’ case, because Greene was never certified as an expert witness.

The district court did not abuse its discretion by admitting Greene’s report

and declaration. Under Federal Rules of Evidence 601 and 701, Green’s report and

declaration contained his competent percipient witness testimony as a visitor to the

Sea Bird Jazz Lounge. Identifying popular songs does not require “scientific,

technical, or other specialized knowledge.” Fed. R. Evid. 702.

3. Defendants’ third argument is that Plaintiffs were required to prove

“substantial similarity” to prevail on their infringement claims.

To establish a prima facie case of copyright infringement, a plaintiff “must

demonstrate ‘(1) ownership of a valid copyright, and (2) copying of constituent

elements of the work that are original.’” Funky Films, Inc. v. Time Warner Entm’t

Co., 462 F.3d 1072, 1076 (9th Cir. 2006) (quoting Feist Pubs., Inc. v. Rural Tel.

Serv. Co., 499 U.S. 340, 361 (1991)). “The word ‘copying’ is shorthand for the

infringing of any of the copyright owner’s [six] exclusive rights,” one of which is

3 the right “to perform the copyrighted work publicly.” S.O.S., Inc. v. Payday, Inc.,

886 F.2d 1081, 1085 n.3 (9th Cir. 1989); see also 17 U.S.C. § 106(4).

“Substantial similarity” is thus not an element of a claim of copyright

infringement. Rather, it is a doctrine that helps adjudicate whether copying of the

“constituent elements of the work that are original” actually occurred when an

allegedly infringing work appropriates elements of an original without reproducing

it in toto. See Funky Films, 462 F.3d at 1076. A showing of “substantial similarity”

is irrelevant in a case like this one, where Plaintiffs produced evidence that the

copyrighted works themselves were performed.1

Because the ownership and validity of the copyrights at issue are not in

dispute, the only remaining question is whether Defendants raised a genuine issue

of material fact as to whether the copyrighted works were in fact publicly

performed.

Greene’s declaration and detailed investigative report were sufficient to

establish that the works were publicly performed. He testified that the live band he

saw perform at the Sea Bird Jazz Lounge introduced the songs they were playing

1 Both the tracks played from the compact disc player and the compositions played by the live band were “performed” as that term is used in the Copyright Act. “To ‘perform’ a work means to recite, render, play, dance, or act it, either directly or by means of any device or process.” 17 U.S.C. § 101.

4 as Coltrane standards and proceeded to play them. He further testified that he saw a

disc jockey play four tracks from a compact disc of Hiroshima songs, the titles of

which he obtained from the jewel case lying next to the compact disc player. All of

this evidence was completely uncontradicted by Defendants, who proffered no

evidence tending to contradict Greene’s testimony that the eight copyrighted

compositions at issue were publicly performed at the Sea Bird Jazz Lounge on the

night he visited the venue.

The district court was correct to hold that Greene’s uncontested declaration

was sufficient to establish that no genuine issue of material fact existed as to

whether copyright infringement occurred at the Sea Bird Jazz Lounge.

4. Defendants next argue that neither East Coast Foods, Inc. nor Herbert

Hudson can be held liable for vicarious infringement, because the Sea Bird Jazz

Lounge and the adjoining Long Beach branch of Roscoe’s House of Chicken and

Waffles are owned by an independent corporate entity called Shoreline Foods.

To impose vicarious liability on a defendant for copyright infringement, “a

plaintiff must establish that the defendant exercises the requisite control over the

direct infringer and that the defendant derives a direct financial benefit from the

direct infringement.” Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 729 (9th

Cir. 2007). A defendant “exercises control over a direct infringer when he has both

5 a legal right to stop or limit the directly infringing conduct, as well as the practical

ability to do so.” Id. at 730.

Overwhelming evidence showed that East Coast Foods and Herbert Hudson

exercised control over both the Long Beach Roscoe’s and the Sea Bird Jazz

Lounge, and derived a financial benefit from the musical performances in the

lounge. The Sea Bird Jazz Lounge displays on its premises a liquor license owned

by East Coast Foods. Hudson, who is the president of both East Coast Foods and

Shoreline Foods, testified that he has managerial authority over the Long Beach

Roscoe’s, including the power to hire and fire employees and the power to prevent

acts from appearing at the Sea Bird Jazz Lounge. The manager of the Long Beach

Roscoe’s, Cuahtemoc Rodriguez, testified that his paychecks are issued by East

Coast Foods and that he buys alcohol for both the restaurant and the lounge area.

By contrast, Defendants’ only evidence that they are not proper defendants is

Hudson’s unsubstantiated and self-serving declaration that he has never owned the

Long Beach Roscoe’s.

Because no genuine issue of material fact exists as to whether East Coast

Foods and Hudson controlled and derived financial benefit from the infringing

performances in the Sea Bird Jazz Lounge, the district court was correct to hold

6 that Hudson and East Coast Foods, Inc. were vicariously liable for copyright

infringement.

5. Defendants finally argue that the district court’s award of attorney’s fees and

costs to Plaintiffs was an abuse of discretion.

The Copyright Act empowers courts to “award a reasonable attorney’s fee to

the prevailing party as part of the costs” in infringement cases. 17 U.S.C. § 505. In

awarding such fees, “district courts are given wide latitude to exercise ‘equitable

discretion.’” Entm’t Research Grp., Inc. v. Genesis Creative Grp., Inc., 122 F.3d

1211, 1229 (9th Cir. 1997).

The district court identified and applied the correct legal standard,

thoroughly considered both parties’ arguments, and articulated a reasoned

explanation for its fee award. Defendants could have avoided liability by

purchasing a valid license at any point during the seven years in which the

American Society of Composers, Authors, and Publishers importuned them to do

so. Moreover, much of the fees and costs were occasioned by Defendants’ own

obfuscation of the corporate structure of Roscoe’s. The district court did not abuse

its discretion in awarding fees and costs to Plaintiffs.

AFFIRMED.

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