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QUILLED CREATIONS, LLC v. SCRAPCUTS

September 2, 2005.

QUILLED CREATIONS, LLC, Plaintiff,
v.
SCRAPCUTS, LLC AND EMILY D. JOHNSON, Defendants.



The opinion of the court was delivered by: CHARLES SIRAGUSA, District Judge

DECISION & ORDER

INTRODUCTION

  The Court previously entered judgment for plaintiffs based on defendants' default in this copyright action. Now pending before the Court is the question of damages. Following a hearing and submission of additional affidavits, the Court determines that plaintiff is entitled to: (1) $150,000 in enhanced statutory damages; (2) $3,973.98 for defendants' unpaid invoices; and (3) $13,605.27 for attorney's fees and costs.

  BACKGROUND

  Quilled Creations is owned and operated by David Bartkowski ("Bartkowski"). His company creates quilling*fn1 kits ("kit"), which contain a twelve-page instruction pamphlet in a folder. (Bartkowski Decl. March 1, 2005 ¶ 3.) The folder is printed in color on the outside, and on the inside are a ruler and instructions for making basic quilling shapes. (Id.) The content on the inside of the kit is the same for every kit. (Id.) The twelve page instruction pamphlet is specific to the subject matter. (Id.) Most kits are theme kits that cost $8.95. (Id. ¶ 2.) There is also a larger beginner kit that costs $39.95. (Id.)

  Relevant to this lawsuit, Bartkowski, on behalf of Quilled Creations, had registered eight theme kits and one beginner kit with the U.S. Copyright Office. (Id. ¶ 5) Bartkowski incurred substantial time and expense in writing, designing, and printing these pamphlets. (Id. ¶ 4.) "For example, the instructions for basic shapes, which are printed inside the folder, represent forty hours of work in creating the images, photography, developing the copytext, formatting, layout and review," and "[i]n all, Quilled Creations kits represent many months of work. It has taken two full years to develop our market and renew interest in this age old craft." (Id. ¶ 4.) Quilled Creations has been selling kits since 2002. (Id. ¶ 7.)

  In June 2003, Quilled Creations began a wholesale relationship with defendants Scrapcuts, LLC ("Scrapcuts"), whose owner is Emily Johnson ("Johnson"). Quilled Creations sold quilling kits to Scrapcuts at wholesale — 50% off retail — less an additional 10%. Over the following nine months, it sold 3,009 kits to Scrapcuts for a total of $18,170.02 at wholesale price. (Bartkowski Decl. March 1, 2005 ¶ 8.)

  In November 2003, Bartowski became aware that defendants had copied artwork from the Quilled Creations website and that they were using it on their website, passing it off as their own creation. (Id. ¶ 11.) Bartkowski wrote Johnson an email to object, and Johnson replied that her web designer would take care of it in a few days. (Id.) However, defendants never corrected the situation, and Bartkowski terminated the business relationship with them in February 2004. (Id. ¶ 9.) At that time, defendants still owed Quilled Creations $3,973.98 for the last three shipments. (Id. ¶ 12.)

  In a June 9, 2003, email correspondence to Bartkowski, Johnson acknowledged that Quilled Creations products were, in fact, copyrighted (Id. at Ex. C.) On March 17, 2004, Bartkowski wrote defendants and demanded "that [Johnson] cease using all Quilled Creations artwork." (Id.) As of March 1, 2005, defendants are still using the copyrighted material. (Id.)

  In July 2004, Bartkowski learned that defendants were selling reproductions of the Quilled Creations quilling kits. (Id. ¶ 13.) In that regard, he discovered that a Scrapcuts' logo appeared on the instructions which accompanied the reproductions. Further, it was apparent that these instructions had been copied from those contained in the Quilled Creations' kits. Moreover, on the copied instructions, there was a Scrapcuts copyright dated 2003 that indicating that defendants' copyright infringement has been ongoing since that time. (Id. ¶ 14.)

  On August 11, 2004, Bartkowski's attorney, Michael Law, Esq., sent a lengthy letter to defendants demanding that they cease and desist the copyright infringement. (Id. ¶ 15; Ex. H.) As of September, 2004, defendants have not responded to Mr. Law's letter and have continued to sell the quilling kits over the Internet, even after being served with a summons and complaint in this action. (Id.)

  On August 25, 2004, Bartkowski asked Aimee Repp ("Repp"), an acquaintance of his family, to place an order with Scrapcuts for three kits. (Id. ¶ 16-17). Bartkowski thought that by then, Johnson would have used up her stock of Quilled Creations kits. Repp asserts she did so and that she received from Scrapcuts instructional booklets that had obviously had the staples removed*fn2 and that the booklets had been reassembled incorrectly. (Repp Dec. ¶ 3.) For example, Repp received the Christmas kit with four pages of the Christmas Kit instructions stapled together with eight pages of the Birthday Kit instructions. (Id.) When Repp complained of the error, Johnson stated, via email, "[a]ll of the Christmas Kits we had here in stock were misprinted." (Id. ¶ 4) Johnson claimed that the problem was due to the supplier. (Id.) Johnson, in her email to Repp, stated, "I do have a photocopy that I can send you — it isn't as nice as the original printed look, but has the instructions you need." (Repp Dec. ¶ 4.)

  Bartkowski commenced this action on August 11, 2004 seeking to enjoin defendants from infringing on Quilled Creations' copyrights and to recover damages from that infringing activity. Defendants were served on September 8, 2004 and are in default. On January 7, 2005, the Court entered an Order enjoining defendants from infringing on Quilled Creations' copyrights. In the original complaint, plaintiff sought either its own damages plus defendants' profits, or statutory damages. (Compl. at 10-11.) However, in the March 1, 2005 declaration by Edmund Baird, an associate of ...


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