
    BROADCAST MUSIC, INC., et al., Plaintiffs, v. Judith PENNY, individually and doing business as Holiday Inn-Trends, Defendants.
    No. 3:94 CV 16.
    United States District Court, E.D. Texas, Paris Division.
    July 15, 1994.
    Kent Arland Rowald, Vaden, Eickenroht, Thompson, Boulware & Feather, Houston, TX, for plaintiffs.
   ORDER

JUSTICE, District Judge.

On April 11, 1994, plaintiffs, Broadway Music, Inc., and others (“BMI”), filed the above-entitled and numbered civil action against defendant Judith Penny, individually and doing business as Holiday Inn-Trends. Plaintiffs claim copyright infringement by defendant under the United States Copyright Act of 1976, 17 U.S.C. § 101 et seq. (the “Copyright Act”). Defendant moved for a jury trial. In response, plaintiff moved to strike the jury demand. For the reasons stated below, defendant’s motion for a jury trial shall be denied.

The Copyright Act contains no explicit statutory provision granting a right to jury trial. The Act provides that the holder of an alleged infringed copyright can elect to recover actual or statutory damages and may seek injunctive relief. Plaintiffs in the instant action seek injunctive relief under 17 U.S.C. § 502 and statutory damages under 17 U.S.C. § 504(c), rather than actual damages.

The United States Court of Appeals for the Fifth Circuit has held that there is no right to a jury trial where the plaintiff seeks minimum statutory damages and injunctive relief under the Copyright Act. Twentieth Century Music Corp. v. Frith, 645 F.2d 6, 7 (5th Cir.1981). The court may exercise its discretion to set damages within the proscribed statutory range without creating a right to a jury trial. Wood v. Crosby Arboretum Foundation, 793 F.Supp. 716, 718 (S.D.Miss.1992). Such exercise of judicial discretion does not offend the Seventh Amendment. Raydiola v. Revelation Rob, 729 F.Supp. 369, 376 (D.Del.1990). Where there is no right to a jury trial, an action shall be tried to the court without a jury. Fed.R.Civ.P. 39(a)(2). Accordingly, it is

ORDERED that defendant’s motion for a jury trial in the above-entitled and numbered civil action shall be, and it is hereby, DENIED. The action shall be tried to the court without a jury.  