United States District Court, E.D. New York
SUPER EXPRESS USA PUBLISHING CORP. on its own behalf, SUPER EXPRESS USA PUBLISHING CORP as assignee of the rights of PRESSPUBLICA SP. Z O.O., and PRESSPUBLICA SP. Z O.O., Plaintiffs,
SPRING PUBLISHING CORP. d/b/a POLSKA GAZETA and JANUSZ CZUJ, Defendants.
MEMORANDUM AND ORDER PARTIALLY ADOPTING REPORT
L. IRIZARRY, CHIEF UNITED STATES DISTRICT JUDGE.
Super Express USA Publishing Corporation and Presspublica SP.
Z O.O. (“Plaintiffs”) assert copyright
infringement claims against Spring Publishing Corporation
(“Spring”), doing business as Polska Gazeta, and
Janusz Czuj (“Defendants”). See
generally, Amended Complaint (“Am. Compl.”),
Dkt. Entry No. 36. On March 24, 2017, the Court granted
Plaintiffs' motion for summary judgment as to their
copyright infringement claims and instructed Plaintiffs to
file a motion for damages should settlement discussion be
unsuccessful. See Super Express USA Publ'g Corp. v.
Spring Publ'g Corp., 2017 WL 1274058, at *11-12
(E.D.N.Y. Mar. 24, 2017).
March 24, 2017, the Court reinstated Plaintiffs'
previously filed motion for default judgment against Spring,
which had been referred to the Honorable James Orenstein,
U.S. Magistrate Judge, for a Report and Recommendation
(“R&R”). See Minute Entry dated Mar.
24, 2017 (referring Plaintiffs' motion for default
judgment); Mem. of Law In Support of Mot. for Default
Judgment (“Default Mot.”), Dkt. Entry No. 54-2;
Mem. of Law In Support of Default Judgment (“Default
Mem.”), Dkt. Entry No. 59-2; Mem. of Law in Opp'n
to Mot. for Default Judgment (“Default
Opp'n”), Dkt. Entry No. 61; Reply in Support of
Motion for Default Judgment (“Default Reply”),
Dkt. Entry No. 64-2.
26, 2017, after unsuccessful settlement discussions,
Plaintiffs filed a motion for damages. See Mem. of
Law in Support of Mot. for Damages (“Damages
Mot.”), Dkt. Entry No. 75. Defendants opposed
Plaintiffs' damages motion. See Mem. in
Opp'n to Pls.' Mot. for Damages (“Damages
Opp'n”), Dkt. Entry No. 84. Plaintiffs filed a
reply in further support of their damages motion.
See Reply Mem. of Law in Support of Damages
(“Damages Reply”), Dkt. Entry No. 86. On October
12, 2017, the Court referred Plaintiffs' damages motion
to Magistrate Judge Orenstein for an R&R.
February 23, 2018, the magistrate judge issued his R&R on
both referred motions, recommending that the Court grant
Plaintiffs' motion for default judgment against Spring,
enter judgment against the Defendants jointly and severally
in the amount of $155, 250, and dismiss all remaining claims.
See R&R, Dkt. Entry No. 88, at 1. Defendants
timely filed objections to the R&R. See
Defs.' Objs. to R&R (“Objs.”), Dkt. Entry
No. 90. Plaintiffs did not respond to Defendants'
objections. For the reasons set forth below, Defendant's
objections are overruled in part, sustained in part, and the
remainder of the R&R is adopted as modified.
party objects to an R&R, a district judge must make a
de novo determination as to those portions of the
R&R to which the party objects. See Fed. R. Civ.
P. 72(b)(3); United States v. Male
Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Pursuant to
the standard often articulated by the district courts of this
Circuit, “[i]f a party . . . simply relitigates his
original arguments, the Court reviews the Report and
Recommendation only for clear error.” Antrobus v.
N.Y.C. Dep't of Sanitation, 2016 WL 5390120, at *1
(E.D.N.Y. Sept. 26, 2016) (citations and internal quotation
marks omitted); see also Rolle v. Educ. Bus Transp.,
Inc., 2014 WL 4662267, at *1 (E.D.N.Y. Sept. 17, 2014)
(“[A] rehashing of the same arguments set forth in the
original papers . . . would reduce the magistrate's work
to something akin to a meaningless dress rehearsal.”)
(citations and internal quotation marks omitted). On the
other hand, the Second Circuit Court of Appeals has suggested
that a clear error review may not be appropriate “where
arguably ‘the only way for [a party] to raise . . .
arguments [is] to reiterate them.'” Moss v.
Colvin, 845 F.3d 516, 519 n.2 (2d Cir. 2017) (quoting
Watson v. Geithner, 2013 WL 5441748, at *2 (S.D.N.Y.
Sept. 27, 2013)). Nonetheless, a court will not
“ordinarily . . . consider arguments, case law and/or
evidentiary material which could have been, but [were] not,
presented to the magistrate judge in the first
instance.” Santiago v. City of New York, 2016
WL 5395837, at *1 (E.D.N.Y. Sept. 27, 2016) (citation and
internal quotation marks omitted).
its review, the district court may then “accept,
reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate
judge with instructions.” Fed.R.Civ.P. 72(b)(3);
see also 28 U.S.C. § 636(b)(1). Where a party
does not object to a portion of the R&R, the court
“‘need only satisfy itself that there is no clear
error on the face of the record.'” Galvez v.
Aspen Corp., 967 F.Supp.2d 615, 617 (E.D.N.Y. 2013)
(quoting Reyes v. Mantello, 2003 WL 76997, at *1
(S.D.N.Y. Jan. 9, 2003)).
object to the R&R on three grounds: (1) Plaintiff has not
established exclusive copyright ownership, as required by the
Copyright Act; (2) statutory damages are unavailable because
Plaintiffs have not registered their foreign copyrights, and
the absence of U.S. copyright registration bars recovery of
statutory copyright damages; and (3) the R&R incorrectly
recommends that the Court grant summary judgment to
Plaintiffs when there are disputed issues of fact as to the
licensing value of the infringed articles, which the R&R
references as an approximation for actual damages. Objs. at
1-2. The Court will address each of these objections in turn.
contend that Plaintiffs' own evidence demonstrates that
they held a nonexclusive right to publish the infringed
articles, which is insufficient since, under the Copyright
Act, infringement claimants must have exclusive copyright
ownership. Id. at 2-3. In support of their argument,
Defendants point to the language of the Model Employment
Contract (Dkt. Entry No. 75-12 (sample contract); Dkt. Entry
No. 75-13 (English translation of sample contract)), in which
the employee agrees that “he will not exercise his
copyrights in a way that could restrict the freedom of use of
press material by Employer.” Id. (quoting
Model Employment Contract). Defendants construe this language
as providing the employee a right to exercise his or her
copyright, thus rendering Plaintiffs' copyrights
non-exclusive. Id. at 3 (emphasis added) (“The
author's shared right to publish the copyrighted articles
makes the copyright rights of the newspaper
presented the identical argument to the magistrate judge. In
their opposition to Plaintiffs' motion for damages,
Defendants argued that “Plaintiffs' evidence
affirmatively shows that plaintiff has failed to meet the
threshold requirement” of an exclusive copyright.
See Damages Opp'n at 2-3 (“[T]he author
retains ‘his copyrights' [under the Model
Employment Contract] and . . . [t]his is the opposite of a
transfer of an exclusive economic right in the author's
work.”). The magistrate judge rejected this argument,
finding that the “standard contract explicitly assigns
to Presspublica the copyright ownership of the employed
journalist's work.” R&R at 6. Defendants'
rehashing of arguments previously raised ...