The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT AND RECOMMENDATION
TO THE HONORABLE ROBERT L. CARTER, UNITED STATES DISTRICT JUDGE
In this action, plaintiffs Javier Barrera ("Barrera") and Lynn
Burgos ("Burgos") (collectively "plaintiffs") allege violation of
the Copyright Act of 1976, 17 U.S.C. § 101, et seq.
("Copyright Act"), against Brooklyn Music, Ltd. ("BML") and Frank
Babar ("Babar") (collectively "defendants"). Upon the defendants'
failure to answer or otherwise respond to the complaint or to the
amended complaint, your Honor referred the matter to the
undersigned to conduct an inquest and to report and recommend the
amount of damages, if any, to be awarded to the plaintiffs
against the defendants.
The Court directed the plaintiffs to file and serve proposed
findings of fact and conclusions of law and an inquest memorandum
setting forth their proof of damages, the costs of this action,
and their attorney's fees. The defendants were directed to file
and serve opposing memoranda, affidavits and exhibits, as well as
any alternative findings of fact and conclusions of law they deemed appropriate. The defendants were also directed to
state whether they wanted a hearing to be held for the purpose of
In support of their request for damages, the plaintiffs
submitted: (1) an inquest memorandum; (2) the declaration of
Barrera, attesting to the facts in the plaintiffs' inquest
memorandum; (3) the declaration of an expert in the area of
licensing stock photographic works, Gary Elsner ("Elsner"),
opining on the plaintiffs' actual damages ("Elsner Declaration");
and (4) the declaration of the plaintiffs' attorney, Nicholas A.
Penkovsky ("Penkovsky Declaration").
The defendants failed to respond to the Court's directive.
The plaintiffs' submissions aver that they are entitled to
$1,512,000.00 in actual damages and profits attributable to the
defendants' infringement, as well as to unspecified costs they
incurred in bringing this action. Additionally, the plaintiffs
seek an order permanently enjoining the defendants from further
distribution of the Green Silo #3 photograph ("Photograph"),
which is the subject of this action, and an order that the
defendants destroy any infringing articles in their possession.
For the reasons set forth below, I recommend that the
plaintiffs be awarded $27,000.00 in actual damages, and that the
plaintiffs' application for injunctive relief be granted.
Based on submissions by the plaintiffs, the amended complaint
filed in the instant action the factual allegations of which,
perforce of the defendants' default, must be accepted as true,
except as they relate to damages, see Au Bon Pain Corp. v.
Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981) and the Court's
review of the entire court file maintained in this action, the
following findings of fact are made:
The plaintiffs are visual artists residing in the state of New
York. Defendant BML is a corporation organized and existing under the laws of the state of
New York, with its principal office in Kings County. K-tel
International, Inc. ("K-tel"), a defendant dismissed from the
action following a negotiated disposition of the claims asserted
against it, is a Minnesota corporation with an office in New York
County. At times relevant to this action, K-tel and BML were each
engaged in the business of producing, marketing, distributing,
and selling music recordings. Defendant Babar was BML's
In August 1997, the plaintiffs jointly created the Photograph.
It is an original abstract photograph of an aged agricultural
silo located in Vermont. The Photograph is part of a collection
of the plaintiffs' photographs that are available for sale to
collectors through art galleries. In November 1997, the
plaintiffs showed the Photograph to a designer as part of a
portfolio of the work the plaintiffs had created jointly. The
plaintiffs left the Photograph with the designer for review only;
they did not authorize its reproduction.
In an agreement dated June 24, 1997 (the "1997 Agreement"),
K-tel retained Babar as a consultant. At the conclusion of the
1997 Agreement's one-year term, K-tel, Babar and BML entered into
an agreement ("1998 Agreement") under which: 1) K-tel was to
provide funding of at least $60,000.00 per month to BML for a
period of two years; 2) Babar was to be employed exclusively by
BML; and 3) K-tel acquired certain options to purchase a
controlling interest in BML. In pertinent part, the preamble to
the 1998 Agreement states the following:
* * *
[. . .] K-TEL and BML have previously and will
continue to enter into agreements with regard to the
exploitation of BML Assets ("Other K-TEL Agreements")
including, without limitation, with regard to the
a) the distribution by K-TEL of albums produced,
recorded, owned or controlled by BML or artists with
whom BML has agreements; and b) the licensing by K-TEL of masters, entire ...