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Pasatieri v. Starline Productions, Inc.

United States District Court, E.D. New York

January 14, 2020



          PAMELA K. CHEN, United States District Judge:

         Plaintiff Christopher Pasatieri brought this action on August 20, 2018, alleging that Defendant Starline Productions, Inc., without authorization, reproduced and published a copyrighted photograph of a Star Wars character cosplay[1] owned and registered by Plaintiff (the “Photograph”), in violation of Section 501 of the Copyright Act (“the Act”), 17 U.S.C. § 501. An entry of default having been issued against Defendant, Plaintiff now moves for default judgment, actual damages, and costs. For the reasons set forth below, Plaintiff's motion is granted in part and denied in part.


         Plaintiff is a New York-based professional photographer and the author of the Photograph (Complaint (“Compl.”), Dkt. 1, ¶¶ 5, 12), which depicts a character from the Star Wars universe (see Exhibit A, Dkt. 1-1). Defendant is a for-profit business organized and existing under the laws of New York with a place of business in Brooklyn, New York. (Compl., Dkt. 1, ¶¶ 6, 8.) Defendant, which operates the print magazine and website Cosplay Culture (id. ¶ 7), allegedly printed the Photograph without authorization from Plaintiff in the December/January 2018 issue of Cosplay Culture, in an article titled “‘Mazing Mandos - The Mandalorian Mercs” (id. ¶¶ 10, 15; see Exhibit C, Dkt. 1-3). Plaintiff owns all rights in the Photograph and had registered the Photograph with the U.S. Copyright Office under Copyright Registration Number VA 2-103-277, effective as of May 15, 2018. (Compl., Dkt. 1, ¶¶ 12-14; see Exhibit B, Dkt. 1-2.)


         Plaintiff filed the instant action on August 20, 2018. (See Compl., Dkt. 1.) Plaintiff has also filed an Affidavit of Service confirming that two true and correct copies of the Summons; Complaint with Exhibits A, B, and C; Civil Cover Sheet; and this Court's Individual Rules were served on Defendant on September 14, 2018. (Dkt. 16-2.) To date, Defendant has failed to appear, plead, or otherwise respond to the Complaint. The applicable time limit for answering or otherwise responding to the Complaint has expired, and the Clerk's Certificate of Default was entered on February 13, 2019. (Dkt. 11.) Plaintiff filed a motion for default judgment on August 20, 2019. (Dkt. 15.) To date, Defendant has failed to file a response to Plaintiff's motion for default judgment.


         The procedure for entry of a default judgment is governed by Federal Rule of Civil Procedure 55(a), which provides that, “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.” Fed.R.Civ.P. 55(a). Accordingly, courts in this circuit have outlined a two-step process: “first, the entry of a default, and second, the entry of a default judgment.” City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 128 (2d Cir. 2011) (citing New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005)). The entry of default “formalizes a judicial recognition that a defendant has, through its failure to defend the action, admitted liability to the plaintiff.” Id.; see also Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004) (noting that default judgments “track[] the ancient common law axiom that a default is an admission of all well-pleaded allegations against the defaulting party”); United States v. DiPaolo, 466 F.Supp.2d 476, 482 (S.D.N.Y. 2006) (“[A] party's default is deemed to constitute a concession of all well pleaded allegations of liability.” (internal quotation and citations omitted)). Second, the entry of a default judgment “converts the defendant's admission of liability into a final judgment that terminates the litigation and awards the plaintiff any relief to which the court decides it is entitled, to the extent permitted by Rule 54(c).”[2] Mickalis Pawn Shop, 645 F.3d at 128.

         “[T]he decision to grant a motion for a default judgment lies in the sound discretion of the trial court.” O'Callaghan v. Sifre, 242 F.R.D. 69, 73 (S.D.N.Y. 2007) (citing Shah v. N.Y. State Dep't of Civil Serv., 168 F.3d 610, 615 (2d Cir. 1999)). A district court deciding a motion for default judgment “is required to accept all of the [plaintiff's] factual allegations as true and draw all reasonable inferences in its favor.” Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (citing Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)). However, “a district court need not agree that the alleged facts constitute a valid cause of action, ” Mickalis Pawn Shop, 645 F.3d at 128 (internal quotation and citation omitted), and the court therefore must “determine whether [a plaintiff's] allegations establish [a defendant's] liability as a matter of law, ” Finkel, 577 F.3d at 84.


         I. Liability

         Plaintiff brings this action against Defendant to enforce his rights under §§ 106 and 501 of the Act, 17 U.S.C. §§ 106, 501. (Compl., Dkt. 1, ¶ 20.) The relevant subsections of the Act vest the owner of a copyright with

the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending . . . .

17 U.S.C. § 106(1)-(3). Thus, the Act is a “strict liability regime” that “makes parties who infringe on [the copyright holder's] rights liable for damages, regardless of whether they had knowledge that the content was infringing.” BWP Media USA Inc. v. Polyvore, Inc., 922 F.3d 42, 47 (2d Cir. 2019) (citing 17 U.S.C. § 504). In order to establish infringement of a copyright under the Act, “two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are ...

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