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Seelie v. The Original Media Group LLC

United States District Court, E.D. New York

January 12, 2020

TOD SEELIE, Plaintiff,
v.
THE ORIGINAL MEDIA GROUP LLC, Defendant.

          MEMORANDUM DECISION AND ORDER

          Brian M. Cogan U.S.D.J.

         This is a copyright infringement action in which plaintiff, a professional photographer, granted a license for the use of a photograph that he took, and defendant copied the photograph from the licensee's publication and ran it without permission. In publishing the photograph without permission, defendant removed the credit for the photograph in which the licensee had shown plaintiff's name (referred to as a “gutter credit” based on its position in the photograph). The case is before me on plaintiff's motion for a default judgment, the Clerk of Court having entered defendant's default pursuant to Federal Rule of Civil Procedure 55(a).

         The complaint contains two claims for relief: copyright infringement under the Copyright Act of 1976, 17 U.S.C. §§ 106, 501, and removal of the attribution acknowledgement that appeared in the licensee's publication under the Digital Millennium Copyright Act, 17 U.S.C. § 1202(b). In light of defendant's default in this case, all of the well-pleaded allegations in plaintiff's complaint pertaining to liability are deemed true, see Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 159 (2d Cir. 1992). Of course, “[e]ven after default it remains for the court to consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law.” In re Wildlife Ctr., Inc., 102 B.R. 321, 325 (E.D.N.Y. 1989) (citation omitted). But here, plaintiff has stated valid claims.

         However, “when a default judgment is warranted based on a party's failure to defend, the allegations in the complaint with respect to the amount of the damages are not deemed true.” Credit Lyonnais Secs. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999). A court may conduct hearings to determine the amount of damages, but an inquest by paper record - rather than an in-person court hearing - is appropriate when the court relies on affidavits and other documentary evidence and the amount is liquidated. See Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., Div. of Ace Young Inc., 109 F.3d 105, 111 (2d Cir. 1997).

         Particularly since plaintiff seeks statutory damages, no hearing is necessary here. Plaintiff seeks statutory damages of $30, 000 for Count I of the complaint under 17 U.S.C. § 504(c)(1), and $10, 000 for Count II under 17 U.S.C. § 1203(c)(3)(B). The former statute has a range of $750 to $30, 000.00 (so that plaintiff is seeking the maximum) and the latter has a range of $2, 500 to $25, 000. Picking the proper award within these ranges is a matter of the court's discretion, see Fitzgerald Pub. Co. v. Baylor Pub. Co., 807 F.2d 1110, 1116 (2d Cir. 1986), informed by a number of financial and conduct-based considerations. These considerations include:

(1) the infringer's state of mind; (2) the expenses saved, and profits earned, by the infringer; (3) the revenue lost by the copyright holder; (4) the deterrent effect on the infringer and third parties; (5) the infringer's cooperation in providing evidence concerning the value of the infringing material; and (6) the conduct and attitude of the parties.

Bryant v. Media Right Prods., 603 F.3d 135, 143-44 (2d Cir. 2010).

         In the default context, it is obviously incumbent upon the plaintiff to submit a record sufficient to support the amount of statutory damages that he is seeking. Of course, allowance must be made for the fact that the defendant's failure to appear limits that which plaintiff can show. See Streamlight, Inc. v. Gindi, No. 18-CV-987, 2019 WL 6733022, at *17 (E.D.N.Y. Oct. 1, 2019) (“[D]efendants frustrated the litigation process by failing to appear in this case or, at any point, respond to the allegations listed in the Complaint. . . . As a result, plaintiff could not obtain meaningful discovery, including discovery related to damages.”). But even on a motion for default judgment, the plaintiff may be able to ascertain information from readily available public sources about the infringement and the defendant's financial status. See Conan Props. Int'l LLC v. Sanchez, No. 17-CV-162, 2018 WL 4522099, at *31 n.37, 36 (E.D.N.Y. June 8, 2018), report and recommendation adopted with modifications, 2018 WL 3869894 (E.D.N.Y. Aug. 15, 2018). And a plaintiff can certainly disclose his usual licensing fee so that actual damages can be considered as a component of statutory damages.

         Unfortunately, plaintiff has not given me much assistance in applying these factors. Plaintiff has “respectfully declined” to disclose the fee paid by his licensee or any other licensee for the photograph or similar photographs, asserting that having elected statutory damages, his usual license fee is irrelevant. Plaintiff is correct that he has the right to elect statutory damages without regard to his actual damages, see Nat'l Football League v. PrimeTime 24 Joint Venture, 131 F.Supp.2d 458, 471-72 (S.D.N.Y. 2001), but by not disclosing the license fee, he has limited my ability to analyze the relevant factors used to determine the appropriate award, as those factors include consideration of revenue lost by the copyright holder. See Bryant, 603 F.3d at 144.

         Instead of conducting some minimal investigation of the infringement and then arguing the facts of this case to support his award requests, plaintiff asserts that there is a “long-line of cases in this Circuit which award $30, 000.00” on default judgment motions under 17 U.S.C. § 501, and other cases within this district “have recently awarded $10, 000 in statutory damages for a defaulting defendant's violation of §1202(b)” of the DMCA. He refers to these cases as “evidence, ” but of course they are not evidence, they are legal authorities. I have reviewed those cases and, as to the Copyright Act claim, each one undertook the analysis of the relevant factors that plaintiff has not given me here, or at least those of the factors that could be considered in the context of a motion for a default judgment. See Lucerne Textiles, Inc. v. H.C.T. Textiles Co., No. 12 Civ. 5456, 2013 WL 174226, at *3 (S.D.N.Y. Jan. 17, 2013), report and recommendation adopted, 2013 WL 1234911 (S.D.N.Y. Mar. 26, 2013); Tokar v. 8 Whispering Fields Assocs., Ltd., No. 08-cv-4573, 2011 WL 7445062, at *2 (E.D.N.Y. Dec. 13, 2011) report and recommendation adopted, 2012 WL 688468 (E.D.N.Y. Mar. 2, 2012); Microsoft Corp. v. Computer Care Ctr., Inc., No. 06-CV-1429, 2008 WL 4179653, at *10-11 (E.D.N.Y. Sept. 10, 2008); Peer Int'l Corp. v. Max Music & Entm't, Inc., No. 03-cv-996, 2004 WL 1542253, at *3-4 (S.D.N.Y. July 9, 2004); Stevens v. Aeonian Press, Inc., No. 00 Civ. 6330, 2002 WL 31387224, at *2 (S.D.N.Y. Oct. 23, 2002); Getaped.com, Inc. v. Cangemi, 188 F.Supp.2d 398, 403 (S.D.N.Y. 2002).

         As to the DMCA claim, plaintiff has merely submitted copies of judgments awarding $10, 000, so I have no idea of how those courts arrived at that figure. I can only note that there are plenty of cases that have awarded less than $10, 000 for DMCA violations, particularly where the plaintiff has failed to provide much assistance in applying the relevant factors. See e.g., Jerstad v. New York Vintners LLC, No. 18-CV-10470, 2019 WL 6769431, at *4 (S.D.N.Y. Dec. 12, 2019), report and recommendation adopted, 2020 WL 58237 (S.D.N.Y. Jan. 6, 2020).

         This illustrates a bigger problem with plaintiff's presentation. The fact that out of the hundreds of Copyright Act and DMCA cases filed in this Court and the Southern District of New York over the last eighteen years (a very large number of them prosecuted by this plaintiff's counsel), a relative handful have awarded the amount of statutory damages he seeks here, does not give me any guidance as to the amount of statutory damages that should be awarded in this case. For every case that plaintiff cites that awarded the same amounts he is seeking, there are more cases awarding different amounts - including many cases brought by this plaintiff's counsel in which he sought the same amounts that he is seeking here. See e.g., Myeress v. Elite Travel Group USA, No. 18-CV-340, 2018 WL 5961424, at *3-4 (S.D.N.Y. November 14, 2018); Romanowicz v. Alister & Paine, Inc., No. 17-CV-8397, 2018 WL 4762980, at *1 (S.D.N.Y. Aug. 3, 2018), report and recommendation adopted, 2018 WL 4759768 (S.D.N.Y. Oct. 1, 2018). As another court noted in a case brought by this plaintiff's counsel:

Plaintiff [has not] provided any support, case law or otherwise, for the $10, 000 figure other than attaching orders where courts adopted the $10, 000 in statutory damages listed in the plaintiff's proposed order. Plaintiff has not explained why the orders he attaches are appropriate comparisons. Accordingly, because Plaintiff would have difficulty showing actual damages for removal of the gutter credit and has not made much of an effort to support a damages figure, I recommend that the minimum of $2, 500 be awarded in statutory damages.

Jerstad, 2019 WL 6769431, at *4. This is not the only time a court has rejected the request from this plaintiff's counsel for an unsupported statutory award. In a case similar to the instant case where the court rejected the request of plaintiff's counsel for the $30, ...


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