272

777 FEDERAL SUPPLEMENT, 2d SERIES

is asking this court for leave to amend the
subject matter of a pending appeal (unlike
Lee, which allowed an extension to correct
what, for all practical purposes, was a mis-
nomer).
1
This is a sensitive jurisdictional
matter that is best committed to the dis-
cretion of the Court of Appeals.
SO ORDERED.
,

SIXX GUNNER MUSIC,
et al., Plaintiffs
v.
THE QUEST, INC., Defendant.
C.A. No. 09cv30071MAP.
United States District Court,
D. Massachusetts.
April 15, 2011.
Background: After summary judgment
was entered in favor of members of the
American Society of Composers, Authors,
and Publishers (ASCAP) in a copyright
infringement action alleging that the own-
ers of a bar played copyrighted songs from
a jukebox without a license, members
moved for a damages award, attorney fees,
and an injunction prohibiting future in-
fringements.
Holding: The District Court, Ponsor, J.,
held that statutory damages award of
$14,000, approximately twice the amount of
unpaid licensing fees, was warranted.
Motion granted in part and denied in part.
1. Copyrights and Intellectual Property
O87(3.1)
Copyright statute governing recovery
of statutory damages for infringement not
only compels restitution of profit and repa-
ration for injury but also is designed to
discourage wrongful conduct. 17 U.S.C.A.
504(c)(1).
2. Copyrights and Intellectual Property
O87(3.1)
Where no proof of actual damage is
offered in copyright infringement action,
the issue of statutory damages is resolved
by the discretionary judgment of the dis-
trict court. 17 U.S.C.A. 504(c)(1).
3. Copyrights and Intellectual Property
O87(3.1)
Among the factors for the court to
consider in awarding statutory damages in
copyright infringement action are (1) ex-
penses saved and profits reaped by the
defendant, (2) revenues lost by the plain-
tiffs, (3) the deterrent value of the award,
and (4) whether the infringement was will-
ful or innocent. 17 U.S.C.A. 504(c)(1).
4. Copyrights and Intellectual Property
O87(4)
Statutory damages award of $14,000,
approximately twice the amount of unpaid
licensing fees, would have deterrent effect
in copyright infringement action alleging
owners of bar played copyrighted songs
from a jukebox without a license; award of
statutory minimum was unrealistic given
that it would total less than half the unpaid
fees and that owners violations were will-
ful, while damages of approximately three
times the unpaid license fees would be
excessive given that bar was small estab-
1. Moreover, in Lee, plaintiffs were rescued by
a timely cross-appeal filed by defendants,
which in effect reopened the window for the
filing of a notice of appeal. As a result, the
plaintiffs not listed in the original plaintiffs
notice of appeal have filed a timely notice of
appeal and need not justify their conduct un-
der the excusable neglect standard of Rule
4(a)(5). Lee, 937 F.2d at 223. Here, Smith
has offered nothing that would amount to a
satisfactory showing of excusable neglect or
good cause.
273
SIXX GUNNER MUSIC v. THE QUEST, INC.
Cite as 777 F.Supp.2d 272 (D.Mass. 2011)
lishment that had gross bar receipts of
$300 on night of infringement and owners
had since entered into contract for right to
play copyrighted music at bar. 17
U.S.C.A. 504(c)(1).
Stephen S. Young, Holland & Knight,
LLP, Boston, MA, for Plaintiffs.
Timothy J. Ryan, Ryan & Downey, P.C.,
Springfield, MA, for Defendant.
MEMORANDUM AND ORDER RE-
GARDING PLAINTIFFS MOTION
FOR DAMAGES, PERMANENT IN-
JUNCTION, AND ATTORNEYS
FEES (Dkt. No. 21)
PONSOR, District Judge.
I. INTRODUCTION
In this copyright infringement action,
Plaintiffs, who are members of the Ameri-
can Society of Composers, Authors, and
Publishers (ASCAP), sued Defendant
The Quest, Inc., the owner of a small bar
in Agawam, Massachusetts, for playing
copyrighted songs from a jukebox without
a license. On May 15, 2010, this court
granted Plaintiffs Motion for Summary
Judgment (Dkt. No. 15), which was unop-
posed. Plaintiffs now move for a damages
award totaling $22,000, attorneys fees to-
taling $18,495,
1
and an injunction prohibit-
ing future infringements. (Dkt. No. 21.)
For the reasons stated below, Plaintiffs
motion will be allowed in part and denied
in part. The court will award Plaintiffs
$14,000 in damages, $18,495 in attorneys
fees, and the requested injunction.
II. FACTUAL BACKGROUND
The facts are straightforward and undis-
puted. Plaintiffs are members of ASCAP
and hold copyrights to numerous songs.
Defendant is a Massachusetts corporation
that owns and operates Michael Anthonys
Bar & Grill (Michael Anthonys) in Aga-
wam, Massachusetts. Plaintiffs assert
that representatives of ASCAP first con-
tacted Defendant on April 24, 2002, re-
garding the unauthorized use of copyright-
ed music, and later contacted Defendant
more than forty times, without success.
On September 26, 2008, Plaintiffs sent
an investigator to Michael Anthonys to
take notes on copyrighted songs played by
a disc jockey throughout the night. The
investigator remained for four hours, not-
ing that the disc jockey played forty-nine
songs, four of whichWildside, Plush,
You Shook Me All Night Long, and
Alivewere subject to copyright protec-
tion by ASCAP.
III. DISCUSSION
Defendant has not disputed the allega-
tion that the above songs were played and
did not oppose summary judgment on the
issue of liability. The only remaining issue
for this court to decide is the appropriate
remedy.
[13] Where a finding of infringement
is made, the copyright owner is entitled
under 17 U.S.C. 504(c)(1) to damages
between $750 and $30,000 for each count;
under 17 U.S.C. 505 to costs including
reasonable attorneys fees; and under 17
U.S.C. 502(a) to an injunction in the
copyright owners favor. This statute not
only compels restitution of profit and rep-
aration for injury but also is designed to
discourage wrongful conduct. F.W.
1. Plaintiffs had originally requested $15,960
when they first filed their motion and later
supplemented the motion with a request for
additional fees in the amount of $2,535 for
work performed since the filing of their origi-
nal motion.
274
777 FEDERAL SUPPLEMENT, 2d SERIES
Woolworth Co. v. Contemporary Arts, Inc.,
344 U.S. 228, 233, 73 S.Ct. 222, 97 L.Ed.
276 (1952). Where, as here, no proof of
actual damage is offered, the issue of stat-
utory damages is resolved by the discre-
tionary judgment of the district court.
Morley Music Co. v. Dick Staceys Motel,
Inc., 725 F.2d 1, 2 (1st Cir.1983). Among
the factors for the court to consider in
awarding damages are (1) expenses saved
and profits reaped by the defendant, (2)
revenues lost by the plaintiffs, (3) the de-
terrent value of the award, and (4) wheth-
er the infringement was willful or inno-
cent. Polygram Intl Publishing, Inc. v.
Nevada/TIG, Inc., 855 F.Supp. 1314, 1335
(D.Mass.1994). The damages awards in
such cases generally range from two to six
times the amount saved by the defendant
by not paying the license fees. See Sony
BMG Music Entertainment v. Tenenb-
aum, 721 F.Supp.2d 85, 110 (D.Mass.2010);
EMI Mills Music, Inc. v. Empress Hotel,
Inc., 470 F.Supp.2d 67, 75 (D.P.R.2006).
[4] Here, if Defendant had been prop-
erly licensed by ASCAP from April 24,
2002, through December 31, 2009, Defen-
dant would have paid license fees totaling
$7,213.06. (Dkt. No. 21, Ex. 1, Jones Decl.
8.) In addition, the expense to ASCAP
for its investigation on September 26, 2008,
amounted to $552.03. (Id. 9.) Plaintiffs
seek $5,500 in damages for each of the
four counts (i.e., songs), totaling $22,000,
or approximately three times the unpaid
license fees. Defendant urges the court to
award the statutory minimum of $750 per
count, totaling $3,000, or less than half the
unpaid license fees.
An award in the middle ground of $3,500
per violation, totaling $14,000, or approxi-
mately twice the unpaid fees, is proper
here. Considering that the courts award
should be designed to have a deterrent
effect, see F.W. Woolworth Co., 344 U.S. at
233, 73 S.Ct. 222, awarding Plaintiffs the
statutory minimum is not a realistic option,
where, as noted, such an award would total
less than half the unpaid fees. Additional-
ly, as Plaintiffs point out, Defendant re-
ceived multiple notifications that Michael
Anthonys was illegally using copyrighted
music, which supports an inference that
the violations were willful.
Nonetheless, several mitigating factors
warrant an award at the lower end of the
damages spectrum. First, Michael Antho-
nys is a small neighborhood bar that can
accommodate fewer than one hundred indi-
viduals at any given time. On the night in
question, according to Plaintiffs own in-
vestigator, three patrons were present
when he arrived, ten were present when
he left, and the crowd swelled to sixteen at
the height of the evening. Defendants
gross bar receipts totaled less than $300.
Certainly, the fact that Defendant reaped
minimal benefits from its misconduct com-
pels the court to exercise restraint in ar-
riving at a damages award.
Second, the court is confident that an
award of $14,000 will have the requisite
deterrent effect. The same punishment
may be felt differently by different wrong-
doers depending on their size and their
metaphorical pain threshold. A $14,000
damages award, compounded by nearly
$20,000 in attorneys fees, as well as the
cost of Defendants own representation,
would be enough to make the owner of
even a considerably larger establishment
wince.
Third, and finally, Defendant has since
demonstrated a willingness to change its
ways. Shortly after this lawsuit com-
menced, Defendant entered into a contract
with Broadcast Music, Inc. (BMI), a
competitor of ASCAP, for the right to play
copyrighted music at Michael Anthonys.
While Plaintiffs correctly note both that
ASCAP owns copyrights to different songs
and that Defendants change of heart was
untimely, Defendants decision to seek out
275
LUGO v. AVON PRODUCTS, INC.
Cite as 777 F.Supp.2d 275 (D.Puerto Rico 2011)
a license with BMI indicates that this liti-
gation has already produced the desired
result.
Consequently, the court will award
Plaintiffs $3,500 per violation, totaling
$14,000 in damages, plus the requested
$18,495 in attorneys fees, which Defen-
dant does not challenge. In addition, the
court will allow Plaintiffs request for a
permanent injunction preventing Defen-
dant from further use of Plaintiffs copy-
righted material without first obtaining a
license.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs
Motion for Damages, Permanent Injunc-
tion, and Attorneys Fees (Dkt. No. 21) is
hereby ALLOWED IN PART and DE-
NIED IN PART. The court hereby
awards Plaintiffs $14,000 in damages,
$18,495 in attorneys fees, and a perma-
nent injunction preventing Defendant from
further use of Plaintiffs copyrighted mate-
rial without first obtaining a license. This
case may now be closed.
It is So Ordered.
,

Laura LUGO, Plaintiff,
v.
AVON PRODUCTS, INC., Defendant.
CIV No. 091522 (PG).
United States District Court,
D. Puerto Rico.
March 1, 2011.
Opinion Granting in Part and Denying in
Part Reconsideration May 10, 2011.
Background: Former employee, a district
sales manager for company engaged in
sales and distribution of beauty and relat-
ed products, filed action pursuant to Age
Discrimination in Employment Act
(ADEA) against her former employer al-
leging discrimination on basis of age and
retaliation for engaging in protected con-
duct. Employee also pled supplemental
claims for age discrimination under Puerto
Ricos antidiscrimination, wrongful termi-
nation, and general tort statutes. Employ-
er moved for summary judgment.
Holdings: The District Court, Juan M.
PerezGimenez, J., held that:
(1) some materials submitted by both par-
ties were inadmissible for purposes of
summary judgment;
(2) employees transfer to different zone
was discrete act, and ADEA claim
based thereon was time-barred, though
it could be used as background evi-
dence;
(3) fact issue existed as to whether em-
ployers proffered reasons for employ-
ees termination after end of probation-
ary period following her transfer to
different zone were pretext for age
discrimination;
(4) Ellerth/Faragher affirmative defense
was unavailable to employer;
(5) employees assertions of discriminatory
remarks on part of her supervisors did
not rise to level of hostile work envi-
ronment; and
(6) fact issue existed as to causal connec-
tion between employees alleged pro-
tected activity and asserted pretermin-
ation acts of retaliation.
Motion granted in part and denied in part.
1. Federal Civil Procedure O2545
Documents supporting or opposing
summary judgment must be properly au-
thenticated; failure to authenticate docu-
ment properly precludes its consideration
on motion for summary judgment. Fed.
Rules Civ.Proc.Rule 56(e), 28 U.S.C.A.