United States District Court, S.D. New York
OPINION AND ORDER
L. CARTER, JR., United States District Judge:
Francis Janik brings this action for copyright infringement
against Defendant MediaPost Communications, Inc.
("MediaPost"). After Plaintiff obtained a
Certificate of Default from the Clerk of the Court, he made
the instant motion for default judgment against MediaPost.
For the reasons that follow, Plaintiffs motion for default
judgment is denied.
is a professional photojournalist. ECF No. 1
("Compl."), at ¶ 5. In the 1980's,
Plaintiff photographed the founder and then-editor of SPIN
Magazine, Bob Guccione, Jr. Id. ¶ 7, Ex. A
(Guccione Photograph). Plaintiff alleges that he is the sole
owner of the Guccione Photograph, and that the United States
Copyright Office has given it a "pending"
registration number. Id. ¶¶ 8-9, Ex. B
4, 2015, MediaPost, a New York corporation, published an
article on its website about Guccione and SPIN Magazine that
featured Plaintiffs photograph of Guccione. Id.
¶¶ 6, 10, Ex. C (Screenshot of MediaPost Website).
Plaintiff contends that he did not license the Guccione
Photograph to MediaPost nor did MediaPost have his consent to
use it. Id. ¶ 11.
initiated this action on July 21, 2016, alleging that
MediaPost infringed his copyright on the Guccione Photograph
by reproducing it online, and seeking damages for violations
of the Copyright Act, 17 U.S.C. §§ 106, 501, and
the Digital Millennium Copyright Act, 17 U.S.C. § 1202.
Compl. ¶¶ 12-23. Plaintiff served MediaPost with a
copy of the Complaint the following day. ECF No. 5. On
October 14, 2016, the Clerk of the Court entered a
Certificate of Default as to MediaPost as a result of
MediaPost's failure to answer or otherwise respond to the
Complaint. ECF No. 8. Having obtained the Clerk's
Certificate of Default, Plaintiff filed a motion for default
judgment against MediaPost on December 23, 2016. ECF No. 9
("Pi's Memo."). The Court then ordered
MediaPost to show cause why default judgment should not be
entered against it pursuant to Rule 55 of the Federal Rules
of Civil Procedure. ECF No. 10. MediaPost was to make such
showing in writing on or before January 27, 2017. The Court
clearly warned MediaPost that its failure to comply with the
Court's Order to Show Cause would result in a default
judgment against it. Five months have elapsed since
MediaPost's response to the Court's Order to Show
Cause was due, but, to-date, MediaPost has not filed anything
or otherwise appeared in this action.
of the Federal Rules of Civil Procedure sets out a two-step
process for the entry of default judgment. See Enron Oil
Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993).
First, the Clerk of the Court automatically enters a
certificate of default after the party seeking a default
submits an affidavit showing that the other party "has
failed to plead or otherwise defend." Fed.R.Civ.P.
55(a); Local Civil Rule 55.1. Second, after a certificate of
default has been entered by the Clerk, the court, on
plaintiffs motion, will enter a default judgment against a
defendant that has failed to plead or otherwise defend the
action brought against it. See Fed. R. Civ. P.
failing to answer the allegations in a complaint, the
defaulting defendant admits the plaintiffs allegations.
Fed.R.Civ.P. 8(b)(6) ("An allegation-other than one
relating to the amount of damages-is admitted if a responsive
pleading is required and the allegation is not
denied."). However, a district court "need not
agree that the alleged facts constitute a valid cause of
action." City of N.Y. v. Mickalis Pawn Shop,
LLC, 645 F.3d 114, 137 (2d Cir. 2011) (quoting Au
Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir.
1981)) (internal quotation marks . omitted). Rather, the
Second Circuit Court of Appeals has "suggested that,
prior to entering default judgment, a district court is
'required to determine whether the [plaintiffs]
allegations establish [the defendant's] liability as a
matter of law." Mickalis Pawn Shop, 645 F.3d at
137 (quoting Finkel v. Romanowicz, 577 F.3d 79, 84
(2d Cir. 2009)). In making this determination, the court
draws all reasonable inferences in plaintiffs favor. Au
Bon Pain, 653 F.2d at 65.
Violation of the Copyright Act
relevant part, the Copyright Act provides that "the
owner of copyright under this title has the exclusive rights
... (1) to reproduce the copyrighted work in copies or
phonorecords; (2) to prepare derivative works based upon the
copyrighted work; [and] (3) to distribute copies or
phonorecords of the copyrighted work to the public by sale or
other transfer of ownership, or by rental, lease, or
lending." 17 U.S.C. § 106; accord Arista
Records, LLC v. Doe 3,604 F.3d 110, 117 (2d Cir. 2010).
Section 501 of the Copyright Act provides copyright owners
with a cause of action against infringers. To state a claim
for copyright infringement, a plaintiff must allege "(1)
which specific original works are the subject of the claim;
(2) plaintiffs ownership of the copyrights in those works;
(3) proper registration of the copyrights; and (4) by what
acts during what time the ...