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BARRERA v. BROOKLYN MUSIC

United States District Court, S.D. New York


September 16, 2004.

JAVIER BARRERA and LYNN BURGOS, Plaintiffs,
v.
BROOKLYN MUSIC, LTD., K-TEL INTERNATIONAL, INC., FRANK BABAR and JOHN and JANE DOES 1 through 10, Defendants.

The opinion of the court was delivered by: ROBERT CARTER, Senior District Judge

OPINION

In this action, plaintiffs Javier Barrera and Lynn Burgos allege a violation of the Copyright Act of 1976, 17 U.S.C. § 101, et seq. ("Copyright Act"), against defendants Brooklyn Music, Ltd. and Frank Babar. Upon defendants' failure to answer or otherwise respond to either the complaint or the amended complaint, the court referred the matter to Magistrate Judge Kevin Nathaniel Fox to conduct an inquest and to report and recommend the amount of damages, if any, to be awarded to plaintiffs against defendants.

In a Report and Recommendation dated June 30, 2004 ("R&R"), Magistrate Judge Fox recommended that the court: 1) award plaintiffs actual damages in the amount of $27,000.00; 2) deny plaintiffs' application for an award of profits, attorneys fees and costs; 3) permanently enjoin defendants from making any further infringing use of the Green Silo #3 photograph ("photograph"), which is the subject of this action; and 4) order defendants to destroy any articles in their possession that make infringing use of the photograph.

  Plaintiffs have timely filed objections to Magistrate's R&R, which they support with a declaration from their attorney, Nicholas A. Penkovsky ("Penkovsky decl."). In these submissions, plaintiffs request that the court adopt Magistrate Judge Fox's recommendations that the court: 1) award plaintiffs actual damages in the amount of $27,000.00; 2) permanently enjoin defendants from making further infringing use of the photograph; and 3) order defendants to destroy any articles in their possession that make infringing use of the photograph. They further request that the court overrule the R&R to the extent that it denies their application for costs. Specifically, they ask the court to clarify whether Magistrate Judge Fox's recommendations to deny their application for costs pursuant to § 505 of the Copyright Act precludes an award of costs pursuant to 28 U.S.C. § 1920 and Rule 54, F.R. Civ. P. They also seek to file a bill of costs to recoup both the cost of personal service of their inquest submission on defendants and their expert witness fee, in addition to any other permissible costs pursuant to 28 U.S.C. § 1920 and Rule 54, F.R. Civ. P.

  Pursuant to 28 U.S.C. § 636(b)(1)(C) the court reviews de novo those portions of the R&R to which objections have been made and may generally accept, reject or modify, in whole or in part, the recommendations made by the Magistrate Judge.

  Based on a review of the entire court file maintained in this action, the court adopts the findings of fact and conclusions of law of Magistrate Judge Fox with regards to the recommendations that the court: 1) award plaintiffs actual damages in the amount of $27,000.00; 2) deny plaintiffs' application for an award of profits and attorneys fees; 3) permanently enjoin defendants from making any further infringing use of the photograph; and 4) order defendants to destroy any articles in their possession that make infringing use of the photograph. The court, however, overrules the R&R with regards to plaintiffs' application for an award of costs and grants costs in the amount of $130.00 for the reasons set out below.

  Plaintiffs' Application for an Award of Costs

  Pursuant to plaintiffs' request, we first undertake to clarify the interplay between § 505 of the Copyright Act on the one hand and Rule 54, F.R. Civ. P. and 28 U.S.C. § 1920 on the other. Section 505 of the Copyright Act provides the court with explicit statutory authority to award costs pursuant to a violation of the Copyright Act. See 17 U.S.C. § 505.*fn1 In addition, Rule 54, F.R. Civ. P. and 28 U.S.C. § 1920 constitute general provisions which permit the court to award certain costs to a prevailing party in the absence of a more specific statute. See Rule 54, F.R. Civ. P. and 28 U.S.C. § 1920.*fn2 As such, the court's award of costs in this action is to be rendered under the auspices of § 505 rather than that of the more general cost shifting provisions. Rule 54, F.R. Civ. P. and 28 U.S.C. § 1920 are not, however, irrelevant to the court's analysis. This court's decisions indicate that the "full costs" referred to in § 505 of the Copyright Act are commensurate with those costs allowed under 28 U.S.C. § 1920. See United States Media Corp., Inc. v. Edde Entertainment, Inc., 1999 WL 498216, at *7 (S.D.N.Y.) (Dolinger, M.J.) ("The weight of authority indicates that the `full costs' referred to in the Copyright Act are nothing more than the costs allowed under 28 U.S.C. § 1920. . . . We adhere to this consensus."), Robinson v. Random House, Inc., 877 F.Supp. 830, 844 (S.D.N.Y. 1995) (Preska, J), Stevens Linen Associates, Inc. v. Mastercraft Corp., 1981 WL 1426, (S.D.N.Y.) (Motley, J.). Thus, although the authority to award costs in this action is derived from § 505, caselaw interpreting Rule 54, F.R. Civ. P. and 28 U.S.C. § 1920 provides guidance as to the types of costs deemed recoverable.

  Magistrate Judge Fox's denial of plaintiffs' costs was based on the lack of evidence on the record before him. (R&R, at 12-13). In their current submissions, plaintiffs seek to recover, and offer evidence of, two items of costs. The first is the cost of personal service, in the amount of $191.00, of their inquest submission on defendants, as ordered by Magistrate Judge Fox. This cost includes $151.00 for service of process by a private process server and a $40.00 statutory filing fee for service upon a corporation pursuant to Section 306 of New York State Business Corporation Law. (Penkovsky decl., ¶¶ 5-6). The second item is the cost of their expert witness Gary Elsner in the amount of $952.00. (Pl.f' inquest submission, exh. 8). We deal with each of these in turn.

  With respect to private process server fees, this Circuit has recognized that there is a trend to substitute private process servers for United States Marshals and that district courts have discretion to grant appropriate process server fees to the extent that they do not exceed the costs that would have been incurred had the Marshals' office effected service. United States v. Merritt Meridian Construction Co., 95 F.3d 153, 172 (2d Cir. 1996). Pursuant to 28 C.F.R. § 0.114(a)(3), the United States Marshals Service charges $45.00 per hour for process served or executed personally by an employee, agent or contractor of the United States Marshals Service. Therefore, based on a one hour's work rate and given that the defendants were separately served, the court awards plaintiffs $90.00 for process server fees. Plaintiffs may also recover the $40.00 filing fee as Section 306(b)(1) of New York State Business Corporation Law explicitly lists the statutory fee as a taxable disbursement. See NY Bus. Corp. § 306(b)(1).*fn3 Next, plaintiffs ask the court to allow them to recover the cost of their expert witness report. The types of witness fees that may be shifted under 28 U.S.C. § 1920(3) are defined by 28 U.S.C. § 1821. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 435 (1987) ("We hold that absent absent specific statutory or contractual authorization for the taxation of a litigant's witness as costs, federal courts are bound by the limitations set out in 28 U.S.C. § 1821 and § 1920."). Fees charged by a party's expert witness for the preparation of their report are not, however, listed in 28 U.S.C. § 1821 as taxable costs. Moreover, this Circuit has made it clear that applications for an award of such expert witness fees should be rejected. United States ex rel. Evergreen Pipeline Constr. Co. v. Merritt Meridian Constr. Corp., 95 F.3d 153, 173 (2d Cir. 1996). Given that the authority provided by § 505 of the Copyright Act mirrors that of 28 U.S.C. § 1920 recovery is also barred under the Copyright Act. Plaintiffs' application to recover expert witness fees is therefore denied.

  CONCLUSION

  For the foregoing reasons, the court: 1) awards plaintiffs actual damages in the amount of $27,000.00; 2) denies plaintiffs' application for an award of profits and attorneys fees; 3) permanently enjoins defendants from making any further infringing use of the photograph; 4) orders defendants to destroy any articles in their possession that make infringing use of the photograph; and 5) awards plaintiffs costs in the amount of $130.00.

  IT IS SO ORDERED.


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