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Frye v. Lagerstrom

United States District Court, S.D. New York

June 27, 2018

JOSEPH FRYE, Plaintiff,

          Attorney for Plaintiff Danny Jiminian, Esq. Jiminian Law PLLC

          Defendant (pro se) Benjamin F Lagerstrom

          Copies of the foregoing Memorandum and Order have been mailed on this date to the following: Benjamin F. Lagerstrom



         On August 31, 2017, this Court granted plaintiff Joseph Frye's motion for summary judgment on his copyright infringement and breach of contract claims against defendants Benjamin Lagerstrom and Dianacollv, Inc. Mem. & Order, Aug. 31, 2017, ECF No. 214. Before the Court is plaintiff's motion for equitable and monetary relief. Mot., Dec. 18, 2017, ECF No. 220. For the following reasons, plaintiff's requests for a permanent injunction, impoundment, statutory damages, attorney's fees, and damages for breach of contract are granted in part.

         I . BACKGROUND

         A. Facts

         The facts of this case are described in detail in our previous opinions. See Mem. & Order, ECF No. 214; Frye v. Lagerstrom, No. 15 Civ. 5348 (NRB), 2016 WL 3023324 (S.D.N.Y. May 24, 2016). We assume the reader's familiarity with the facts of the case and only provide the background relevant for deciding the present motion.[1]

         In 2014, plaintiff Frye and defendant Lagerstrom reached an agreement to produce a short film entitled "Homeless: A Love Story," which was based on a script written by Frye. Frye Aff. ¶¶ 3, 6-10. On September 12, 2014, the parties executed a "Crew Agreement" under which Dianacollv and its "personal representatives" would provide video production services in the form of equipment, cast, and crew. Frye Aff. ¶ 11; Compl. Ex. B ("Crew Agreement"). In exchange, plaintiff would provide, inter alia, meals, a makeup artist, and participation credit to the crew, and provide a DVD of the completed motion picture within 60 days. Crew Agreement at 1. The production work was to be done "on speculation," meaning that defendants would not be paid but were working "under the idea that future paid work will result from the help in promotion of the project that comes with sample/demonstration production, otherwise known as a "pilot!.]'" Id. The Crew Agreement further provided that "all footage and material being part of this agreement is the property of the Producer" and that Dianacollv "will not distribute or display such footage in any way other than as an example/demonstration of the company's work." Id. Frye signed the agreement as the "Producer," and Lagerstrom signed it as the "Crew Chief." Id. at 2. During negotiations, Frye also agreed to give Lagerstrom credits as "Director of Photography" and "Executive Producer" of the film. Frye Aff. ¶ 10.

         At the time, Frye was employed by Showtime Networks as an Associate Producer of Interactive Television. Id. ¶ 5. Frye informed Showtime about the production of "Homeless" to fulfill a nght-of-first-refusal obligation that was a condition of his employment. Id. ¶ 13.

         Principal shooting of "Homeless" occurred in late September 2014. Id. ¶ 14. In October of 2014, as Frye was editing the footage to produce a 12-15 minute short film, the relationship between Frye and Lagerstrom deteriorated after the two disagreed about how best to promote the completed film. Id. ¶¶ 16-22.

         On October 12, 2014, defendant Lagerstrom, under the alias "Jerry Seinfeld," published a video entitled "Pilot for LL/TT Showtime Networks" on YouTube. Id. ¶ 24. The approximately six minute video was composed entirely of footage from the "Homeless" shoot, including an "important scene" of the completed film that Lagerstrom had edited differently. Id. In this video, Lagerstrom labeled himself as "Director." Id. Plaintiff discovered the video and insisted Lagerstrom remove it. Id. ¶¶ 25-26. Lagerstrom refused, responding with an "Order" to Frye, as well as multiple emails and mailings to Showtime staff. Id. ¶ 27; see Compl. Ex. G. Showtime informed Frye that it was declining his project because it needed to "address [Lagerstrom's] harassment" first. Frye Aff. ¶ 28.

         In December 2014, plaintiff applied for copyright registration for "Homeless," receiving certificates of registration for the text of "Homeless" (effective December 26, 2014) and for the motion picture (effective January 20, 2015) . Frye Aff. ¶ 33; Compl. Ex. A.

         Between April and June of 2015, defendant published four additional videos on Vimeo and YouTube. Frye Aff. ¶ 35; see also Pl.'s 56.1 Stmt. ¶¶ 29-36. On June 22, 2015, plaintiff, through counsel, sent defendant a cease and desist letter. Pl.'s 56.1 Stmt. ¶ 32. Defendant responded by writing: "Your client is going to jail . . . give me a break." Id. ¶ 33. Plaintiff submitted copyright notices to YouTube and Vemeo, id. ¶¶ 34, 35, 38, some of which Lagerstrom opposed, id. ¶ 37.

         B. Procedural History

         Frye filed the instant lawsuit on July 10, 2015, alleging copyright infringement and breach of contract claims. On August 31, 2017, we granted Frye's motion for summary judgment on both claims and instructed Frye to file a letter with a proposal on how to move forward on the issue of monetary and/or equitable relief. Mem. & Order, Aug. 31, 2017, ECF No. 214. Frye subsequently filed a motion requesting a permanent injunction, impoundment, statutory damages for his ...

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