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.

Shamir v. Anchor-International Foundation, Inc.

United States District Court, Second Circuit

July 29, 2013

RAMI SHAMIR, Plaintiff,
v.
ANCHOR-INTERNATIONAL FOUNDATION, INC., CIRCLES INTERNATIONAL, LIGHTNING SOURCE, RICHARD TORRENCE, and MARSHALL YAEGAR, inclusive,

ORDER

PAUL G. GARDEPHE, District Judge.

Plaintiff Rami Shamir filed this action against Defendants Anchor-International Foundation, Inc. ("Anchor"), Circles International ("Circles"), Lightning Source, Richard Torrence, and Marshall Yaegar, claiming copyright infringement in violation of Section 106 of the Copyright Act, and raising state law claims of invasion of privacy, misappropriation, and unfair competition. (Cmplt. ¶¶ 23-25, 33-34, 38) On February 10, 2010, Plaintiff voluntarily dismissed as against Defendant Lightning Source. (Dkt. No.9)

None of the remaining defendants answered or otherwise responded to the Complaint. Accordingly, on May 18, 2010, this Court entered a default judgment against Anchor, Circles, Torrence and Yaegar (Dkt. No. 15), and referred the action to Magistrate Judge Debra Freeman for an inquest on damages. (Dkt. No. 16) On March 20, 2012, Judge Freeman issued a Report and Recommendation ("R&R") recommending that this Court award Plaintiff $5, 000 in statutory damages - pursuant to 17 U.S.C. § 504(c) - and deny Plaintiff's request for attorneys' fees and costs. (Dkt. No. 31) Yaegar filed written objections to the R&R (Dkt. No. 32); no other party has submitted objections. For the reasons stated below, this Court will adopt Judge Freeman's R&R in its entirety.

BACKGROUND

In 2007, Plaintiff authored and registered a copyright for a novel entitled, "Train to Pokipse." (R&R at 2 (citing Cmplt. ¶¶ 4, 10)) Defendant Anchor is a not-for-profit organization that owns Defendant Circles, a publishing company. (R&R at 2 (citing Cmplt. ¶¶ 5, 6)) Defendant Torrence, who is now deceased, was the executive director of Anchor, and Defendant Yaegar is the president of Circles. (R&R at 2 (citing Cmplt. ¶¶ 8, 9)) In May 2009, Yaegar and Torrence, via Anchor, offered a grant to assist Plaintiff with the publication of "Train to Pokipse." (R&R at 2 (citing Cmplt. ¶¶ 11, 12)) Yaegar helped Plaintiff copy-edit the novel and by September 2009, Defendants had printed "advanced reader's copies" of the book. (R&R at 2 (citing Cmplt. ¶¶ 14, 16)) Plaintiff never transferred any of his copyright or publication rights to Defendants, however. (R&R at 2 (citing Cmplt. ¶¶ 13, 17))

In October 2009, Plaintiff discovered that Defendants were selling his novel through Defendants' website and various third-party websites. (R&R at 2 (citing Cmplt. ¶¶ 17, 18)) Plaintiff sent a cease and desist e-mail to Lightning Source - a publishing company used by Circles on October 9, 2009. (R&R at 2-3 (citing Cmplt. ¶¶ 7, 20)) Lightning Source responded that all inquiries should be directed to Yaegar, and forwarded the e-mail to Yaegar. (R&R at 3 (citing Cmplt. ¶ 20)) Plaintiff sent another cease and desist letter to all Defendants on November 11, 2009. (R&R at 3 (citing Cmplt. ¶ 21))

On January 29, 2010, Plaintiff filed a complaint alleging copyright infringement, pursuant to 17 US.c. §§ 106(1), (3), and (5); invasion of privacy under New York Civil Rights Law § 51; and misappropriation and unfair competition under New York common law. (R&R at 3) On February 11, 2010, this Court issued a preliminary injunction enjoining Defendants from taking any action that infringed Plaintiff's copyright (Dkt No.10)

None of the Defendants answered or otherwise responded to the Complaint. Accordingly, on May 3, 2010, this Court issued an order requiring Defendants to show cause why a default judgment should not be entered against them. (Dkt. No. 13) Defendants filed no response to the order to show cause, and Plaintiff moved for a default judgment. (Dkt. No. 14) On May 18, 2010, this Court entered a default judgment against Defendants Anchor, Circles, Torrence, and Yaegar (Dkt. No. 15), and referred the matter to Judge Freeman for an inquest on damages. (Dkt. No. 16)

Before Judge Freeman, Plaintiff sought $150, 000 per defendant in statutory damages on the copyright infringement claim, $38, 176 in attorneys' fees, and $1, 500 in costs. (R&R at 5 (citing Supplemental Submission with Respect to Damages (Dkt. No. 19))) Plaintiff did not request any damages with respect to his state law claims. (R&R at 5-6 (citing Supplemental Submission with Respect to Damages (Dkt. No. 19)))

On August 2, 2010, Defendant Yaegar sent a letter to Judge Freeman in his capacity as "Administrator" of Anchor. (R&R at 6 (citing Yaegar Ltr. (Dkt. No. 22))) In response, Judge Freeman issued an order noting that, as a pro se litigant, Yaegar could not make a submission on behalf of a corporation such as Anchor (Dkt. No. 20) (citing Grace v. Bank Leumi Trust Co. , 443 F.3d 180, 192 (2d Cir. 2006))), and also could not act on behalf of the other individual defendants. (Id.) Judge Freeman also noted that Yaegar's August 2, 2010 letter dealt only with liability, and did not address the damages issue that had been referred to Judge Freeman. (R&R at 6 (citing August 2, 2010 Yaegar Ltr. (Dkt. No. 22)))

Accordingly, on November 23, 2010, Judge Freeman issued an order giving Defendants a final opportunity to respond to Plaintiff's submission on damages. (R&R at 6-7 (citing Scheduling Order for Damages Inquest (Dkt. No. 20))) Judge Freeman's order explicitly informed the Defendants that Anchor could make a submission only through counsel, and that Torrence could make a submission either pro se or through counsel. (Dkt. No. 20)

On December 3, 2010, Defendant Torrence, proceeding pro se, sent a submission to Judge Freeman that addressed liability. Torrence's remarks concerning damages were limited to a representation that Defendants had no assets and that, accordingly, any damages award would be uncollectible. (Dkt. No. 21 at 5)) Yaegar sent additional letters to Judge Freeman contesting liability and claiming financial inability to satisfy any type of judgment. (R&R at 8 (citing Yaegar Ltrs. (Dkt. Nos. 28, 29)))

On January 24, 2012, Judge Freeman conducted an evidentiary hearing on damages. None of the Defendants appeared at the hearing. (R&R at 8-9) At the hearing, Plaintiff testified about Defendants' continued sale of "advanced reading copies" of "Train to Pokipse, " despite his cease and desist letters and e-mail, and about the damages that Plaintiff had suffered as a result of Defendants' infringing activities. (R&R at 9) After the hearing, Yaegar sent a letter to the court asserting that only 100 "advanced reading copies" of the novel were ever printed by the Defendants. (R&R at 9)

On March 30, 2013, Judge Freeman issued her R&R. (Dkt. No. 31) In the R&R, Judge Freeman found that Defendants willfully infringed Plaintiff's copyright by continuing to sell copies of "Train to Pokipse" despite Plaintiff's cease and desist letters, and that Defendants had realized estimated profits of $1, 200 from their infringing activities. (R&R at 12 (citing Cmplt. ¶¶ 20, 21; Hearing Tr. at 6)) Judge Freeman also determined that Plaintiff suffered no losses due to Defendants' infringement because, by Plaintiff's own admission, the book was not ready for release. (R&R at 12) Accordingly, Judge Freeman concluded that "this case presents a situation of willful infringement, with modest profits to the infringers, at best, and no demonstrable, actual loss to ...


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.