## Facts

- Copyright owners of several musical compositions (all ASCAP members) granted ASCAP nonexclusive rights to license nondramatic public performances of their works.
- A for-profit private golf club operated a restaurant in Houston, Texas; the club’s president and principal stockholder oversaw operations.
- On September 6, 1986, the club hosted a single evening of live music in the restaurant.
- Approximately 21 club members plus guests were present during the performances.
- The musical works were performed without an ASCAP license or other authorization from the copyright owners.
- Plaintiffs sued for copyright infringement under Title 17; both sides moved for summary judgment, and plaintiffs sought leave to supplement their motion with an additional affidavit.

## Issues

1. Whether the live performances at a members-and-guests golf club restaurant constituted “public performances” under the Copyright Act.
2. Whether the performances were unauthorized and therefore infringed the copyright owners’ exclusive public-performance rights.
3. Whether the corporate club and its president/principal stockholder could be held liable for the infringing performances.
4. Whether any statutory exemption (including 17 U.S.C. § 110) shielded defendants from liability.

## Decision

- Plaintiffs’ motion for leave to supplement their summary judgment materials was granted.
- Defendants’ motion for summary judgment was denied.
- Plaintiffs’ cross-motion for summary judgment was granted on liability.
- The court held the performances were “public,” unauthorized, and infringing.
- The court held both the golf club corporation and the club president/principal stockholder liable.

## Legal Principles

- A copyright infringement claim requires proof of: (1) originality/authorship, (2) compliance with copyright formalities, (3) ownership, (4) public performance for profit, and (5) defendant responsibility for the performance.
- Copyright registrations and related chain-of-title evidence are prima facie evidence of validity and ownership absent meaningful rebuttal.
- A performance is “public” if it occurs at a place open to the public or where a substantial number of persons outside a normal family-and-friends circle is gathered; member-access venues open to members and guests can satisfy this standard.
- Commercial benefit may be shown where music contributes to the atmosphere and patronage of a for-profit venue, even without a separate admission charge for the music.
- A corporate officer may be jointly and severally liable with the corporation when the officer has the right and ability to supervise the infringing activity and a direct financial interest in the exploitation.
- Statutory exemptions in 17 U.S.C. § 110 are construed narrowly and do not cover for-profit club restaurant performances merely because the audience is membership-based or no admission fee is charged.

## Conclusion

The court ruled that live music performed in a for-profit golf club’s members-and-guests restaurant was a “public performance” requiring authorization, and that the absence of a license established infringement for which both the club and its president/principal stockholder were liable.


Fermata Int’l Melodies, Inc. v. Champions Golf Club, Inc., 712 F. Supp. 1257 (S.D. Tex. 1989)