BMI is one of the chief enforces of copyright law in the music industy. BMI states on its website:
BMI supports its songwriters, composers and publishers by taking care of an important aspect of their careers – getting paid. BMI supports businesses and organizations that play music publicly by offering blanket music licenses that permit them to play more than 8.5 million musical works. Both relationships save each time and money.Run afoul of BMI and rest assured BMI will be in court to protect the copyright of its members. Copyright law is a serious business in the music industry and woe to those who cross BMI.
BMI sued Cherokee Inn on October 29, 2014 in U.S. District Court for alleged copyright infringement. The plaintiff filed five claims of infringement as it argued the defendant allowed public performance of songs in the BMI music catalog without permission or payment for the use of the songs. The complaint states the violations are:
January 9, 2014: Folsom Prison Blues by Johnny Cash
January 9, 2014: How Sweet It Is to be Loved By You by Dozier, Holland, & Holland
June 12, 2014: Jolene by Dolly Parton
October 9, 2014: Oh Lonesome Me by Don Gibson (not the pitcher)
June 12, 2014: Heartaches by the Number by Harlan Howard
The suit sought damages, attorney's fees, and a restraining order to prevent the Cherokee from playing unauthorized music. Copeland Cook attorneys Charles Copeland and Timothy Sterling represent BMI. Cherokee filed an answer at the end of December that denied the claims or asserted that BMI did not provide enough information to state a claim, a standard response.
The parties had a settlement conference on March 19, 2015 and apparently agreed to a settlement. The word "apparently" is used because the fun began after the settlement conference. BMI filed a motion to enforce settlement and for costs and for expedited hearing on May 27, 2015. The Cherokee closed on May 22. BMI claimed that a settlement was raeached on March 26 in a telephonic conference with Judge Linda Anderson. BMI accused Cherokee of refusing
to consummate the settlement agreement despite their acknowledgment that a settlement occurred, and Plaintiffs have exhausted all efforts to consummate the settlementBMI asked the court to issue an order that enforced the settlement and required Cherokee Inn Enterprises and its owner, Hayes McMillan, to sign and execute the settlement agreement.
Mr. McMillan filed his own response on June 10 and it can be stated in two words: no money. BMI asked for an emergency order. Mr. McMillan said there was no emergency as his restaurant was now closed. The Cherokee was open when the settlement was reached in March but as it closed, there is no need for an emergency hearing. He said he intended to remain open when he settled the case. The defendant stated in a June 10 response:
On May 22, 2015, the Cherokee Drive Inn closed and ceased operations. The reason the Cherokee ceased operations is simple. It simply had no money to continue operating. Indeed, the Court was made aware of Cherokee's financial difficulty at the time of the settlement conference.
4. These facts demonstrate one reason – impossibility – settlement should not be compelled at this time. That is, neither of the Defendants have the funds to pay a settlement, and the Cherokee is no longer in existence...
6. A third reason the settlement should not be compelled is that it is in part, moot. Namely, the portion of the settlement that would require a non-existent entity to cease having live music....
7. The Defendants are amenable to attempting to fund the settlement, but need additional time to determine their financial future. For that reason, the Defendants request a six month stay of this litigation. If the stay request is denied, it is likely that defendant Hayes McMillan will file bankruptcy if the Plaintiffs refuse to consent to a stay.
BMI's response: Tough luck. BMI argued on June 17 in a response that Mr. McMillan agreed to the settlement terms. BMI eloquently and succinctly argued its case:
Unfortunately, since the settlement was reached, the Defendants have refused to follow through with the settlement on two occasions and are now asking for a “stay.”.....
the Defendants assert, without any supporting affidavit and/or other competent evidence, ignorance and financial difficulties. These assertions are simply not enough, and this settlement should be enforced. ....
As to the Defendants’ assertion of financial difficulties, it too is completely unsupported by any evidence for this Court to consider. Moreover, it was the Defendants supposed consideration of alleged financial difficulties that allowed the Defendants to mull over their decision to settle beyond the date of the settlement conference. Of course, as the record reflects, the Defendants came to the Court after the settlement conference and agreed to settle. The allegations of insufficient funds, without any support, are insufficient to warrant a denial of the Plaintiffs’ Motion to Compel Settlement.
As to the contention that the injunctive relief is no longer needed, the fact that the Cherokee has “closed” does not lessen the need for the injunction. The Cherokee could re-open tomorrow. The Cherokee still exists.
As to the argument for a “stay,” this Court should not be swayed by the unsupported claim that “it is likely that defendant Hayes McMillian will file bankruptcy if the Plaintiffs refuse to consent to a stay.” First, and like the rest of the Defendants’ response, this is a bald assertion with no support. Second, the argument says nothing of the other Defendant, the Cherokee. Third, the Plaintiffs informed the Defendants that they would not consent to a stay on June 2, 2015, which was before the Defendants filed their response, yet the Defendant McMillian has not filed for bankruptcy.
Cherokee attorneys Walker Jones, III and Sterling Kidd filed a motion to withdraw as attorneys for the defendants. They stated Mr. McMillan had not funds to pay for an attorney and would represent himself. Judge Anderson stated she will rule on the motion when she rules on the motion to enforce the settlement agreement. She has not issued a ruling on either motion.
Note: Here are other BMI lawsuits in Mississippi and their filing dates:
Days Inn Crossties Lounge in McComb ( May 5, 2015, open)
Castaways in Ocean Springs (May 2014, settled)
Club Magoo in Jackson (September 17, 2013, settled)
The Bottling Company (formerly The Shed BBQ and Blues Joint in Hattiesburg (July 27, 2012, Judgement against defendants. Defendants satisfied judgment.)
Mardi Gras in Jackson (June 15, 2007. Voluntary dismissal)
Fire in Jackson (May 13, 2010. Default judgment)