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Super Express USA Publishing Corp. v. Spring Publishing Corp.

United States District Court, E.D. New York

March 30, 2018

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,
v.
SPRING PUBLISHING CORP. d/b/a POLSKA GAZETA and JANUSZ CZUJ, Defendants.

          MEMORANDUM AND ORDER PARTIALLY ADOPTING REPORT AND RECOMMENDATION

          DORA L. IRIZARRY, CHIEF UNITED STATES DISTRICT JUDGE.

         Plaintiffs 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).

         Also on 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.

         On May 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.

         On 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.

         DISCUSSION[1]

         When a 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).

         After 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)).

         I. Defendants' Objections

         Defendants 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.

         A. Copyright Ownership

         Defendants 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 non-exclusive.”).

         Defendants 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 ...


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