United States District Court, S.D. New York
Attorney for Plaintiff Danny Jiminian, Esq. Jiminian Law PLLC
Defendant (pro se) Benjamin F Lagerstrom
of the foregoing Memorandum and Order have been mailed on
this date to the following: Benjamin F. Lagerstrom
MEMORANDUM AND ORDER
REICE BUCHWALD UNITED STATES DISTRICT JUDGE
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.
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
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.
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.
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.
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. ¶
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.
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.
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 ...