Vicarious Liability Upheld For Public Performance

In an unpublished decision by the Ninth Circuit Court of Appeals, the Court upheld copyright infringement claim for the public performances of copyrighted musical compositions. Range Road Music, Inc. v. East Coast Foods, Inc. (Case Nos. 10-55691 and 10-55800 – 9th Cir. Court of Appeals – Jan. 12, 2012 decision). An investigator testified that Coltrane standards were being performed by a live band at the Sea Bird Jazz Lounge and that a disc jockey played four Hiroshima songs from a CD.

Defendants claimed that the investigator’s report and declaration should be inadmissible as he was not an expert witness. However, the Court rejected the claims finding that “identifying popular songs does not require “scientific, technical, or other specialized knowledge” under F.R.E. 702.

In addition, Defendants East Coast Foods, Inc. and Herbert Hudson claimed that they could not be liable for vicarious infringement because the Sea Bird Lounge was owned by an independent corporation – Shoreline Foods. The Court rejected this claim finding that Defendants exercised the requisite control over the direct infringer and derived a financial benefit from the public performances. The liquor license at the Sea Bird Jazz Lounge was owned by East Coast Foods. Defendant Hudson was the president of both East Coast Foods and Shoreline Foods and had the authority to hire and fire employees and to prevent acts from appearing at Sea Bird Jazz Lounge. The fact that Hudson had the legal and practical right to stop the infringing conduct played a factor in establishing vicarious liability.

The Court also noted that the Defendants could have purchased an ASCAP license as ASCAP had urged them to over the last 7 years.