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Art, Entertainment & Fashion Law Blog Legal updates, news, and commentary from the attorneys of Baker Sterchi Cowden & Rice LLC

Eighth Circuit Affirms Single Captioned Theatre Performance for Hearing Impaired not Good Enough Under ADA

September 17, 2019 | Brandy Simpson

Title III of the Americans with Disabilities Act specifically prohibits discrimination on the basis of disability in the activities of places of public accommodation. This includes restaurants, schools, movie theatres, doctor’s offices and performing arts theatres. 42 U.S.C. §12182(a). 

In Childress v. Fox Associates, LLC, two hearing-impaired patrons of The Fabulous Fox Theatre in St. Louis (“The Fox”) argued the theatre failed to provide appropriate accommodations under the ADA as a result of the theatre’s offering of only a single captioned performance (Saturday matinee). Plaintiffs argued the ADA requires “equal services,” meaning the theatre was required to offer captioning when requested for any performance, subject only to the ADA’s “undue burden” affirmative defense. During discovery, the Fox objected to providing financial information to support the “undue burden” defense, arguing the information was irrelevant. Plaintiffs argued the Theatre waived the defense by failing to provide financial information. The Fox argued that on-demand captioning was not a reasonable modification to their policies and procedures.  

The district court reasoned that failing to offer captioning at any and every performance where captioning was requested “results in deaf persons being excluded, denied services, or otherwise treated differently than other individuals merely because of the absence of [an auxiliary] aid.” Because The Fox did not assert and prove an undue burden defense, it was required to provide accommodations in the form of auxiliary aids. The District Court awarded injunctive relief requiring The Fox to provide captioning whenever it received a request two weeks prior to the show. The Court also awarded plaintiff $97,920 in attorney’s fees.

On appeal, The Fox argued it should be permitted flexibility to consolidate multiple captioning requests into one performance due to the expense of captioning. It further challenged the award of attorney’s fees, arguing the court used an inflated hourly rate, allowed plaintiff’s counsel to bill for tasks he should not have included, and failed to reduce the fee award to account for plaintiffs’ partial success on the summary judgment motion.

The Court of Appeals first addressed the ADA requirements regarding public accommodations. Under the ADA, public accommodations must provide auxiliary aids and services to individuals with disabilities if the aids are necessary to enjoy “meaningful access” to the public accommodation. In a previous opinion, Argenyi v. Creighton University, the Eighth Circuit explained that under the ADA, a public accommodation shall provide auxiliary aids if the aids would be necessary for an individual to enjoy “meaningful access” to the public accommodation. The definition of “meaningful access” is an “equal opportunity to gain the same benefit” as a person without a disability. Argenyi v. Creighton University, 703 F.3d 441, 449 (8th Cir. 2013). 

The form of auxiliary aid necessary can be determined by the public accommodation, but once it is determined an auxiliary aid is needed, it must be provided unless doing so would “be an undue burden or would fundamentally alter the nature of the provided benefit.” 42 U.S.C. 12182(b)(2)(A)(iii). Both fundamental alteration and undue burden are affirmative defenses that must be raised at the outset or are waived.

The Fox argued that deaf and hearing-impaired patrons received meaningful access to the Fox’s productions because it had never denied a request for captioning and provided a captioned performance of each production. Appellees and the court disagreed, noting hearing impaired patrons received access to a single matinee show on a Saturday for each production while other patrons had access for evening and weekday performances.

The Court also found The Fox had failed to raise “undue burden” as an affirmative defense and had explicitly stated in its summary judgment briefing that it was not asserting an undue burden defense.    The Court further found the district court did not abuse its discretion in awarding attorney’s fees.

Ultimately, the Eighth Circuit Court of Appeals held The Fox’s policy required hearing-impaired individuals to attend a single Saturday matinee performance of each production and prevented them from attending a performance during the week or in the evening, thus excluding the individuals from “economic and social mainstream of American life.” 

The Piper is Finally Paid - the Hatch-Goodlatte Music Modernization Act Becomes Law

January 2, 2019 | John Patterson

As reported in a previous post, Congress spent a portion of the last year considering the Music Modernization Act (MMA), a sweeping piece of legislation meant to bring the world of music licensing into the era of online streaming services. In a rare show of bipartisanship, the MMA sailed through both houses of Congress, and was signed into law by President Trump last fall. This article discusses the key features of the new law.

Blanket Licenses and Royalty Rates

Before the MMA’s passage, streaming services negotiated licenses on an inconsistent basis, and often filed bulk Notices of Intention to use works with the Copyright Office. This haphazard practice created great uncertainty for streaming services and artists: the former faced the very real possibility that they were infringing upon copyrights and providing unlicensed work, while the latter could find themselves uncompensated for the use of their intellectual property.

Under the MMA, a process of blanket licensing has been established. Most works will now be subject to a blanket compulsory license, although the MMA still allows for parties to negotiate their own licensing terms if they so desire. A streaming service need only apply for such a license, and, once granted, the streaming service can make the work available without the fear of copyright infringement looming over it.

The MMA also sets a new standard for establishing royalty rates. Before, the royalty rate was determined by a formula having little to do with prevailing market rates. But now, a copyright royalty judge will determine the rate that would have been negotiated in the marketplace between a “willing buyer and a willing seller.” In reaching this decision, the judge must consider “economic, competitive and programming information” submitted by the parties. Section 102(c)(1)(F).

The Musical Licensing Collective

The MMA creates a body known as the Mechanical Licensing Collective (MLC) to administer this new licensing regime. The MLC will collect royalties from streaming services, pay royalties to artists, and assist in identifying the owners of any and all rights in a particular work. The MLC will be a non-profit entity, created and supported by copyright owners and funded by the payment of licensing fees. The composition of the MLC will be reviewed every five years. It will be overseen by a board of directors consisting of both industry and songwriter representatives.

One of the more interesting aspects of the MLC is the requirement that it establish and maintain a musical works database that will match artists and copyright owners with a particular work. This database will be fully searchable and publicly available. The initial creation of this database will be a formidable task for the MLC, and for the music industry.

Pre-1972 Sound Recordings

The final version of the MMA also incorporates portions of the Classic Protection and Access Act, extending full copyright protection to sound recordings, not already in the public domain, created on or before February 15, 1972. Service providers will now have to pay royalties to copyright owners when these pre-1972 sound recordings are streamed.

The MMA will bring interesting changes to the music industry, and, as with any new law, there will likely be unforeseen consequences of its enaction, whether for good or ill. However, the MMA has been greeted with approval by all sides of the industry, and will hopefully be a strong step towards fully modernizing the licensing and copyright of musical works in the age of streaming services.

The CASE Act - A Noble but Toothless Gesture Toward Fair Copyright Enforcement

April 24, 2018 | John Patterson

The cost of litigating copyright infringement claims in federal court can be immense, taxing the resources of even a well-heeled content creator. For many authors, artists, photographers, and others, this immensity become overwhelming. And at some point, the benefit of pursuing infringement litigation is grossly outweighed by the cost. Consequently, many creators are effectively barred from asserting the full bundle of rights provided by a copyright.

Recently introduced federal legislation purports to change this state of affairs. The Copyright Alternative in Small Claims Enforcement Act of 2017, H.R. 3945 (“CASE Act”) melds elements of traditional small claims procedure, administrative law, and arbitration principles in an attempt to level the playing field. While the bill appears to have some serious deficiencies, its passage would be an interesting first-step towards putting some degree of power back in the hands of average, every-day copyright holders. Here are some key points:


The CASE Act would establish a three person board to hear small copyright claims. Parties would be allowed to represent themselves, and in-person appearances at proceedings would not be required. Rather, proceedings would be conducted by written submissions, and by “internet-based applications and other telecommunication facilities[.]” While the CASE Act does not set a formal schedule for proceedings before the board, it seems that a claim would proceed much faster in this forum than in a traditional court of law.

As with many administrative actions, the formal rules of evidence would be relaxed in CASE Act actions. It appears written discovery would be allowed, but there is no specific provision allowing for depositions. It also appears that the three person board would have very modest subpoena power, limited to commanding service providers to divulge the identity of alleged copyright infringers.

Factual findings would be subject to the “preponderance of the evidence” standard, and all decisions would require a majority of the board. Decisions of the board could be appealed to the United States District Court of the District of Columbia, but could only be overturned on the basis of fraud, misconduct, or other very limited circumstances. In this regard, the CASE Act resembles arbitration.

Participation is Voluntary

Under the CASE Act, participation would be voluntary for all parties. A petitioner would be required to serve a respondent, and a form of default judgment could be entered upon failure to timely respond. However, a responding party could immediately opt out of a CASE Act proceeding, and instead require that the claim be pursued in any court of competent jurisdiction.

Damages Limitations

In keeping with the spirit of small claims court, damages in CASE Act claims would be limited. In the aggregate, no more than $30,000 could be recovered in any one proceeding. Furthermore, recovery of attorney fees appears to be generally prohibited under the CASE Act (except in instances of bad faith conduct). This is a departure from traditional copyright claims brought under the Copyright Act, where attorney fees are available in certain circumstances if a copyright has been properly registered.


The primary problem with the CASE Act appears to be the aforementioned “opt out” provision. A respondent with deep pockets could opt out of any CASE Act proceeding, requiring the claimant to resort to a traditional court to pursue her claim, thereby nullifying a low cost option for those who don’t have the means to pour six or seven figures into full throated litigation. Without a mandate for all parties to participate in the proceedings, it could be argued that the CASE Act is essentially toothless in its current form.

Nevertheless, the mere existence of the CASE Act demonstrates that the plight of the individual artist, musician or other content creator is on the radar screen. With a few very important tweaks, its passage could serve make the copyright playing field a little more level. 

About Art, Entertainment & Fashion Law Blog

The BSCR Art, Entertainment & Fashion Law Blog examines developments in all aspects of the law affecting those in the creative community, including artists, designers, musicians, and venue owners. Learn more about the editor, John Patterson, and our Art, Entertainment & Fashion Law practice.


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