United States District Court, S.D. New York
BWP MEDIA USA INC. d/b/a PACIFIC COAST NEWS, Plaintiff,
UROPA MEDIA, INC., Defendant.
RECOMMENDATION REPORT AND
JAMES C. FRANCIS, IV, Magistrate Judge.
TO THE HONORABLE JED S. RAKOFF, U.S.D.J:
The plaintiff, BWP Media USA Inc. d/b/a Pacific Coast News ("BWP"), brought this action for copyright infringement, alleging that the defendant, Uropa Media, Inc. ("Uropa"), displayed BWP's photographs without authorization on its website, www.thebosh.com.
Following entry of default judgment for the plaintiff, the case was referred to me for an inquest on damages, and a hearing was held on March 21, 2014. Although notice of the hearing was sent to Uropa's last known address, the defendant did not appear. The findings below are therefore based on the evidence presented at the hearing and on the information submitted by the plaintiff together with its Proposed Findings of Fact and Conclusions of Law ("Proposed Findings"). The Court has subject-matter jurisdiction over claims for copyright infringement pursuant to 28 U.S.C. § 1338 as well as federal question jurisdiction under 28 U.S.C. § 1331.
Photographs of Lindsay Lohan were taken on the set of "Scary Movie 5" on September 12, 2012, and the plaintiff registered them with the Copyright Office on October 30, 2012. (Affidavit of Paul Harris in Support of Motion for Default Judgment dated March 15, 2012 ("Harris Aff."), ¶¶ 3, 4). The photographs were registered as part of a larger set, with the copyright registration noting that the publication dates ranged from September 5 to September 12, 2012. (Copyright Registration No. VA0001836330 ("Copyright Registration"), attached as Exh. A to Further Supplemental Declaration of Craig B. Sanders in Support of Plaintiff's Motion for Default Judgment). On September 14, 2012, the defendant posted these photographs on its website without BWP's permission. (Harris Aff., ¶ 5). Accordingly, on November 5, 2013, BWP filed a complaint against Uropa, alleging direct, contributory, and vicarious copyright infringement, as well as inducement of infringement; it sought damages, an injunction, attorneys' fees, and costs. (Complaint). The summons and complaint were served on Uropa on December 16, 2013, but Uropa did not file an answer or otherwise respond. As a result, BWP moved for an entry of default on January 16, 2014 (Notice of Motion for Entry of Default Pursuant to FRCP 55(a)), which was granted on January 27, 2014. (Order of Entry of Default Pursuant to FRCP 55(a)).
Following a default, all factual allegations of the complaint, except those relating to damages, must be accepted as true. Cotton v. Slone , 4 F.3d 176, 181 (2d Cir. 1993); Gucci America, Inc. v. MyReplicaHandbag.com, No. 07 Civ. 2438 , 2008 WL 512789, at *1 (S.D.N.Y. Feb. 26, 2008) (citing Au Bon Pain Corp. v. Artect, Inc. , 653 F.2d 61, 65 (2d Cir. 1981)). In connection with this inquest, BWP has only requested damages on its claim of direct infringement. (Proposed Findings at 3, ¶¶ 2-3).
In order to establish a copyright violation, a plaintiff must show "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Feist Publications, Inc. v. Rural Telephone Service Co. , 499 U.S. 340, 361 (1991); accord Jorgensen v. Epic/Sony Records , 351 F.3d 46, 51 (2d Cir. 2003). BWP holds registered copyrights in the six photographs at issue. (Harris Aff., ¶ 4). BWP has also established unauthorized copying by Uropa, since Uropa posted the photographs to its website even though it had not received permission from BWP. (Harris Aff., ¶ 5). A copyright owner has the exclusive right "to display the copyrighted work publicly." 17 U.S.C. § 106(5). By posting BWP's copyrighted photographs on its website, Uropa directly infringed BWP's rights. See Perfect 10, Inc. v. Amazon.com, Inc. , 508 F.3d 1146, 1160 (9th Cir. 2007) ("[A] person displays a photographic image by using a computer to fill a computer screen with a copy of the photographic image fixed in the computer's memory."). Because BWP sufficiently alleged ownership of valid copyrights and copying of its original works, BWP has established Uropa's liability for copyright infringement as a matter of law.
BWP alleges that Uropa infringed six of its copyrighted photographs, and requests $3, 000 in statutory damages for each infringed image for a total of $18, 000. (Proposed Findings at 2, ¶¶ 8-9 & at 3, ¶ 3). Provided that the work was registered prior to the infringement or within the first three months after publication, 17 U.S.C. § 412, a copyright owner may choose to recover statutory damages instead of actual damages. 17 U.S.C. § 504(c)(1). Here, as evidenced by the Copyright Registration, the photographs were taken and published on September 12, 2012. (Harris Aff., ¶ 3; Copyright Registration); see also Valdez v. Laffey Associates, No. 07-CV-4566, 2010 WL 1221404, at *3 (E.D.N.Y. March 26, 2010) ("A certificate of registration from the U.S. Copyright Office is prima facie evidence of the facts stated therein."). The defendants posted the photographs to their website two days later, on September 14, 2012. (Harris Aff., ¶ 5). The photographs were registered six weeks later, well within the three month grace period provided by § 412. (Harris Aff., ¶ 4; Copyright Registration).
A statutory damages award may range from $750 to $30, 000 for each infringement, based on what the court considers to be just. Id . The court may increase the amount upon a finding of willfulness to $150, 000 per infringement, or decrease the amount to $200 per infringement if it finds the "infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright." 17 U.S.C. § 504(c)(2). Thus, the court has wide discretion in determining an award of statutory damages.
The requested award of $3, 000 per image is clearly within the lawful range, and, indeed, near the lower end. BWP has shown that this represents three times the amount of the licensing fee for each image. (Harris Aff., ¶ 6; Inquest Exh. A). In determining an award of statutory damages, a court may consider a variety of factors, including "the deterrent effect on the infringer and third parties" and "the revenue lost by the copyright holder." Bryant v. Media Right Productions , 603 F.3d 135, 144 (2d Cir. 2010). In determining a copyright owner's lost revenue, a court may take into account unpaid licensing fees. See On Davis v. The Gap, Inc. , 246 F.3d ...