## Facts

- Morganactive Songs, Inc. and other copyright owners sued Alice Padgett in the U.S. District Court for the Middle District of Georgia for copyright infringement based on unauthorized public performances.
- Padgett owned and operated a bar and restaurant that hosted a children’s charity benefit event.
- A live band performed copyrighted musical works at the event without a public-performance license or other authorization from the copyright owners.
- Padgett asserted a defense under the Copyright Act’s charitable-performance exemption, 17 U.S.C. § 110(4).
- In deposition testimony, Padgett stated that proceeds from alcohol sales during the event were kept by her establishment.
- In a later affidavit, Padgett claimed the alcohol-sale proceeds went to the charity, creating a conflict between her deposition and affidavit testimony.
- The plaintiffs moved for summary judgment, arguing the exemption did not apply and that Padgett was liable as the venue owner/operator who permitted the performances.

## Issues

1. Whether unlicensed live performances at a for-profit bar’s charity benefit qualify for the 17 U.S.C. § 110(4) charitable-performance exemption when the venue receives direct or indirect commercial benefit (including keeping alcohol-sale proceeds).
2. Whether a defendant can create a genuine dispute of material fact at summary judgment by submitting an affidavit that contradicts prior deposition testimony about a material point related to the exemption.

## Decision

- The court granted summary judgment for the copyright owners on liability for unauthorized public performance.
- The court rejected Padgett’s § 110(4) charitable-exemption defense because the event was not “without any purpose of direct or indirect commercial advantage,” given the venue’s commercial benefit, including alcohol sales retained by the establishment (as reflected in Padgett’s deposition).
- The court declined to credit Padgett’s later affidavit to the extent it conflicted with her earlier deposition testimony, and it did not treat the affidavit as creating a triable fact issue.
- The court awarded statutory damages (reported as $2,000 per infringed work, totaling $14,000) and addressed attorneys’ fees and costs under 17 U.S.C. § 505.

## Legal Principles

- Copyright exemptions and statutory limitations on exclusive rights, including 17 U.S.C. § 110(4), are construed narrowly.
- The § 110(4) charitable-performance exemption does not apply when the performance is connected to a purpose of direct or indirect commercial advantage to a for-profit venue, even if the event is tied to a charitable cause.
- A bar or restaurant owner may be liable for infringing public performances occurring on the premises when the owner has the ability to control the activity and receives a financial benefit from the event or its draw.
- Under the sham-affidavit rule, a party generally cannot avoid summary judgment by submitting a later affidavit that materially contradicts clear prior deposition testimony without an adequate explanation.
- Statutory damages in public-performance cases may exceed unpaid license fees to deter non-licensing and account for enforcement costs.

## Conclusion

The court held that Padgett, as the owner/operator of a for-profit bar and restaurant, was liable for unlicensed public performances at a children’s charity benefit because the § 110(4) charitable-performance exemption did not apply where the venue obtained commercial benefit, and Padgett’s post-deposition affidavit could not defeat summary judgment by contradicting her earlier testimony about alcohol-sale proceeds.


Morganactive Songs, Inc. v. Padgett, 2006 WL 2882521 (2006)