Metropolitan News-Enterprise


Thursday, July 16, 2020


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Ninth Circuit Affirms $1.5 Million Award Based on Unauthorized Broadcasts of 11 Tunes


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday affirmed a judgment of more than $1.5 million against a man and his companies based on the radio broadcasts of 11 songs in November and December of 2014 without a license from ASCAP, resulting in three stations, including one in Palm Springs, going into receivership.

The action against Edward R. Stolz II and four corporate defendants was brought by ASCAP—an acronym for the American Society of Composers, Authors and Publishers—and by WB Music Corp. and 15 other copyright holders represented by ASCAP.

In an amended judgment on Aug. 6, 2018, District Court Judge Jesus G. Bernal of the Central District of California awarded the plaintiffs $864,278.75 in attorney fees, statutory damages of $330,000 (based on $30,000 per infringement, as found by a jury) plus costs and interest.

Signing yesterday’s memorandum opinion were Senior Circuit Judges Mary M. Schroeder, Barry G. Silverman, and Stephen S. Trott.

Time Bar Argued

Stolz argued on appeal that the action, filed in 2016, was time-barred, citing the three-year limitations period in the Copyright Act. ASCAP had yanked his license to play tunes owned by its members in 2012, he pointed out, evidencing that it knew then of his infringements.

The judges responded:

“This argument fails to acknowledge the separate accrual rule. Regardless of any earlier infringing broadcasts, the statute of limitations ran separately from each of the 2014 broadcasts.”

They added:

“Laches is not available to bar plaintiffs’ damages claims filed within the statute of limitations.”

Attorney-Fee Award

Bernal did not abuse his discretion in setting the attorney fees, the opinion says, declaring:

“The district court properly considered plaintiffs’ moderate degree of success, the unreasonableness of some of defendants’ positions, the consistency of the suit with the purposes of the Copyright Act, and other factors and properly exercised its discretion in awarding attorneys’ fees and costs to plaintiffs, the prevailing parties.”

The FM stations to be sold by a receiver appointed by Bernal are KRCK in Palm Springs, KREV serving Alameda and San Francisco, and KFRH in Las Vegas.

The case is WB Music Corp. v. Stolz, 18-55835.


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