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Janikv. Mediapost Communications, Inc.

United States District Court, S.D. New York

June 26, 2017



          ANDREW L. CARTER, JR., United States District Judge:

         Plaintiff 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.


         I. Factual Background

         Plaintiff 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 (Copyright Application).

         On July 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.

         II. Procedural History

         Plaintiff 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.


         Rule 55 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. 55(b)(2).

         By 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.


         I. Violation of the Copyright Act

         In 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 ...

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