Metropolitan News-Enterprise


Friday, February 17, 2012


Page 1


Panel Rules That Music Played at Restaurant Breached Copyrights




The owners of a popular Long Beach restaurant and jazz lounge are liable for damages and attorney fees for copyright infringement, the Ninth U.S. Circuit Court of Appeals has ruled.

The panel originally affirmed the grant of summary judgment against Herbert Hudson and East Coast Foods, Inc., proprietors of Roscoe’s House of Chicken ‘n Waffles, in an unpublished memorandum last month. The judges elaborated on their ruling yesterday in a published opinion by Judge Richard A. Paez.

A group of copyright owners whose music is licensed through the American Society of Composers, Authors, and Publishers sued the defendants for infringement, claiming that they had publicly played the plaintiffs’ copyrighted works in the Seabird Jazz Lounge adjacent to the Long Beach restaurant. Roscoe’s also operates in Pasadena, Hollywood, Los Angeles, and West Los Angeles, and Hudson is the sole officer and director of East Coast Foods, which holds the liquor license for the lounge.

Investigator’s Testimony

The plaintiffs offered testimony from Scott Greene, a private investigator. Greene explained that ASCAP, after several years of letters asking the restaurant to stop playing copyrighted music or to pay for it, sent him to the Seabird to investigate. He said he had performed hundreds of similar investigations over the years.

Greene did not claim to be a music expert, but testified that he was familiar with all genres of music “except heavy metal and explicit rap.” On his 2008 visit to the lounge, he said, a live band performed four pieces that it announced were, and which Greene recognized as, standards by jazz great John Coltrane.

There was also a disc jockey, who played four tracks from a compact disc containing songs by the smooth jazz band Hiroshima, Greene said. He identified the songs from the jewel case, he explained.

U.S. District Judge Christina A. Snyder of the Central District of California found that the defendants failed to raise a triable issue in defense of the eight infringement claims and awarded $36,000 in damages and $162,000 in costs and attorneys’ fees.

No Expert Needed

The defendants argued on appeal that it was error to allow Greene to testify, since he was not a music expert, that a triable issue existed as to whether there was “substantial similarity” between the copyrighted works and those that were performed, that they presented sufficient evidence to go to trial on the issue of whether they were the actual owners of the Long Beach venue, and that the judge abused her discretion in awarding attorney fees.

Paez, however, said there was no need for expert testimony in order to identify songs.

“Identifying popular songs does not require ‘scientific, technical, or other specialized knowledge,’” as set forth in Rule 702 of the Federal Rules of Evidence, the judge said. “On the contrary, identifying music is a reflexive daily process for millions of radio listeners, amateur karaoke singers, and fans of Name That Tune reruns.”

Substantial similarity, the judge went on to say, is not an element of copyright infringement; substantial similarity is a doctrine that helps determine whether copying of original elements of a work has occurred. In this case, Paez explained, substantial similarity was irrelevant because it was undisputed that the copyrighted works themselves were publicly performed.

As for the claim that the restaurant and lounge were owned by a separate Hudson-owned company, Shoreline Foods, the judge said it made no difference because there was no controversy that the named defendants controlled the venue and benefitted financially from the infringement.

‘Equitable Discretion’

The fee award, Paez concluded, was reasonable, because the court applied its “equitable discretion” under the Copyright Act. The defendants, he noted, could have avoided liability by properly licensing the compositions from ASCAP at any time in the previous seven years. The judge also agreed that a significant portion of the fees incurred by the plaintiffs were related to defendant’s “obfuscation of the corporate structure of Roscoe’s.”

Paez was joined by Judge Harry Pregerson and by U.S. District Judge James P. Jones of the Western District of Virginia.

Among the plaintiffs’ lawyers were Emilia P. Petersen and Danika B. Vittitoe of Arnold & Porter LLP in Los Angeles and Vikram Sohal, of Miller LLP. The defendant were represented by Aaron T. Borrowman, Michael Anthony DiNardo, and John E. Kelly of Kelly, Lowry & Kelley, LLP, Woodland Hills.

The case is Range Road Music, Inc., et al. v. East Coast Foods, Inc., 10-55691.


Copyright 2012, Metropolitan News Company