Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Michael Dweck v. Diana Amadi and Malibu Denim Co

July 6, 2012

MICHAEL DWECK, PLAINTIFF,
v.
DIANA AMADI AND MALIBU DENIM CO., DEFENDANTS.



The opinion of the court was delivered by: Pitman, United States District Judge

REPORT AND RECOMMENDATION TO THE HONORABLE RICHARD M. BERMAN, United States District Judge,

I. Introduction

By notice of motion dated November 1, 2011 (Docket Item 37), plaintiff moves an award of attorney's fees in this copyright infringement action pursuant to 17 U.S.C. § 505. For the reasons set forth below, I respectfully recommend that plaintiff be awarded $11,242.50 in attorney's fees.

II. Facts

This is a copyright infringement action arising out of defendants' unauthorized use of a photograph for which plaintiff owns the copyright. As set forth in my Report and Recommendation dated July 26, 2011 (Docket Item 34), Plaintiff Michael Dweck is a professional art photographer whose work has appeared in publications such as Vogue, GQ, Vanity Fair, and Esquire. Plaintiff's work has been exhibited in galleries around the world (Complaint (Docket Item 1) ("Compl."),*fn1 ¶¶ 2, 8; Declaration of Edward C. Greenberg, Esq., dated March 30, 2011 (Docket Item 30), ¶ 7). Among plaintiff's copyrighted photographic works is a photographic image entitled "Sonya, Poles, Montauk, NY 2002" ("The Image"). The Image depicts a young, naked woman holding a surfboard and running down a beach and appears on the cover of plaintiff's book, The End: Montauk N.Y. (Compl. ¶ 11). The United States Copyright Office issued Copyright Registration No. TX0006433027 to plaintiff on June 1, 2006 for The End: Montauk, N.Y., which includes The Image (Compl. ¶ 12).

Commencing in or around 2009, defendants, who manufacture and sell garments, began using The Image on their hangtags, without the plaintiff's permission. As a result, plaintiff commenced this action for copyright infringement.

Although validly served, defendants did not appear or answer in this matter, and on January 25, 2011, the Honorable Richard M. Berman issued a default judgment in favor of plaintiff. The matter was subsequently referred to me to conduct an inquest and to determine plaintiff's damages. After providing appropriate written notice to all parties, I conducted an inquest on the basis of plaintiff's written submissions (defendants did not submit any papers) and issued a Report and Recommendation dated July 26, 2011 (Docket Item 34), recommending that plaintiff be awarded $100,000 in damages and $450 in costs and disbursements. With respect to attorney's fees, my July 26, 2011 Report and Recommendation denied plaintiff's request for attorneys fees because plaintiff had not submitted any evidence concerning the experience of his attorneys and, therefore, I had no basis on which to assess the reasonableness of the hourly rate sought by the attorneys.

In the present motion, plaintiff attempts to fill the lacuna is in his previous application for fees and has now submitted evidence concerning the expertise and experience of his attorneys.

III. Analysis

A. Plaintiff's Recoverable

Fees Are Limited to the

Documented Time Charges

To their credit, plaintiff's counsel candidly admits that they did not record all the time they spent on plaintiff's case because they represented plaintiff on a contingency basis (Declaration of Edward C. Greenberg, Esq., dated November 1, 2011 (Docket Item 38) ("Greenberg Decl."), ¶ 22). Accordingly, the sum plaintiff seeks to recover as attorney's fees exceeds the product of hours reflected in the time records submitted and the hourly rates sought.

In New York State Association for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1147-48 (2d Cir. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.