Opinion
20-cv-04187 (JGK) (KHP)
06-09-2021
Jose Alvarado, Plaintiff, v. India Abroad Publications Inc., Defendant.
TO THE HONORABLE JOHN G. KOELTL, United States District Judge.
REPORT AND RECOMMENDATION ON DAMAGES
KATHARINE H. PARKER, United States Magistrate Judge.
Plaintiff Jose Alvarado, a photographer, commenced this action against Defendant India Abroad Publications, Inc. alleging copyright infringement under 17 U.S.C. §§ 106, 501 (the “Copyright Act”) after Defendant publicly displayed a copyrighted photograph of congresswoman Alexandria Ocasio-Cortez, which was taken and owned by Plaintiff. In the Complaint, Plaintiff requests either (1) Plaintiff's actual damages and Defendant's profits, gains, or advantages of any kind attributable to the infringement or (2) alternatively, statutory damages of up to $150,000 per infringed work. The Complaint also seeks an award of costs, expenses, attorney's fees, and pre-judgment interest and asks the Court to require Defendant to account for all profits, income, receipts, or other benefits derived from the unlawful conduct.
On November 23, 2020 the Clerk of Court issued a Certificate of Default. (ECF No. 12.) Then, on February 2, 2021 the Hon. John G. Koeltl issued an order finding that “plaintiff is entitled to a default judgment as to defendant INDIA ABROAD PUBLICATIONS INC.” (ECF No. 20.) The matter was then referred to the undersigned for an inquest on damages. In his damages application, Plaintiff requests $5,000 in statutory damages, $350 in attorney's fees, and $440 in costs. (ECF No. 23 at 12.)
For the reasons set forth below, I recommend that Plaintiff's application be granted in full and that the Court enter judgment for Plaintiff in the amount of $5,000 in statutory damages. I further recommend that the Court award $350 in attorney's fees and $440 in costs.
BACKGROUND
It is well-settled that, in light of Defendant's default, Plaintiff's allegations are accepted as true, with the exception of those related to damages. See 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)).
Accordingly, the following facts are established as a result of Defendant's default:
• Plaintiff is a professional photographer who licenses his photographs to online and print media outlets for a fee.
• Defendant is a corporation organized and existing under the laws of New York with a place of business at 42 Broadway, Suite 1836, New York, New York 10004 that owns and operates a website at the URL: www.IndiaAbroad.com.
• Plaintiff photographed congresswoman Alexandria Ocasio-Cortez.
• Plaintiff registered the photograph with the U.S. Copyright Office, which assigned the Copyright Registration Number VA 2-118-599.
• Defendant ran an article on its website entitled “Vinod Khosla's Tweet on Rep. Alexandria Ocasio-Cortez Backfires.” (Compl. ¶ 10.) That article featured Plaintiff's photograph. (Id., Ex. B.) Defendant did not license the photograph from Plaintiff for use in its article or on its website. Nor did Defendant have Plaintiff's permission or consent to publish the photograph.
• The effective date of registration for the copyrighted photograph is September 10, 2018 (ECF No. 15, Ex. D) and Defendant published the article at issue on January 15, 2019 (Compl., Ex. B).
• On June 1, 2020 Plaintiff filed the Complaint in this action seeking the relief described above.
• Defendant failed to appear or answer the Complaint. Therefore, a Default Judgment was entered against Defendant on February 2, 2021.
Also on February 2, 2021 this Court set a briefing schedule and scheduled a telephonic damages hearing for April 29, 2021 at 11:30 a.m. Defendant did not submit any responses or objections to Plaintiff's damages application and failed to appear at the telephonic hearing. Furthermore, Plaintiff's counsel confirmed at the hearing that he attempted to notify Defendant of this Court's February 2, 2021 scheduling order by serving the order on Defendant's last known business address according to the Department of Corporations. On March 19, 2021 Plaintiff's counsel filed a Certificate of Service to that effect with the Court. (ECF No. 24.)
DISCUSSION
To establish a violation of the Copyright Act, a plaintiff must demonstrate his ownership of a valid copyright and defendant's infringement. In other words, a plaintiff must show that the defendant copied original elements of the copyrighted work. See Arista Records LLC v. Doe 3, 604 F.3d 110, 117 (2d Cir. 2010). Plaintiff's pleading satisfies both requirements. As already noted above, the Complaint alleges that Plaintiff owns a valid copyright in the photograph and that Defendant unlawfully reproduced and publicly displayed that photograph on its website. Thus, Plaintiff has established a prima facie case for recovery under the Copyright Act.
Once liability is established, as is the case here, the Court must then assess whether Plaintiff has offered sufficient proof to support the relief he seeks. Bleecker v. Zetian Sys., Inc., No. 12-cv-2151 (DLC), 2013 WL 5951162, at *6 (S.D.N.Y. Nov. 1, 2013). Under Rule 55 of the Federal Rules of Civil Procedure, a court “may conduct hearings . . . to determine the amount of damages.” Fed.R.Civ.P. 55(b)(2). The Second Circuit has held that a court is not required to hold a hearing where it has “ensured that there was a basis for the damages specified in the default judgment.” Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., Div. of Ace Young Inc., 109 F.3d 105, 111 (2d Cir. 1997) (internal quotation marks omitted). In lieu of a hearing, courts may rely on detailed affidavits or documentary evidence to evaluate the proposed sum. Id. “Rule 55(b)(2) and relevant case law give district judges much discretion in determining when it is necessary and proper to hold an inquest on damages.” Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 54 (2d Cir. 1993) (internal quotation marks omitted). Plaintiffs bear the burden of establishing their entitlement to recovery and, thus, must substantiate their claims with evidence to prove the extent of their damages. See Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992).
In this case, the Court scheduled a damages inquest hearing, but very limited testimony was offered because Defendant did not appear. In advance of the hearing, Plaintiff filed papers supporting his request for damages, including proposed findings of fact and conclusions of law. (ECF No. 23.) Plaintiff's counsel also submitted a declaration including documentation of fees and costs incurred in this action. (ECF No. 15 ¶¶ 15-17.)
Here, Plaintiff only requests statutory damages and, therefore, declined to submit evidence of his actual losses as a result of the infringing activity. Under the Copyright Act, a plaintiff who elects statutory damages is entitled to an award of between $750 and $30,000 per work infringed, “as the court considers just.” 17 U.S.C. § 504 (c)(1). Where the infringement is “willful, ” the maximum permissible award per infringed work rises to $150,000. Id. § 504 (c)(2).
The Copyright Act affords the trial court “wide discretion” in setting the amount of statutory damages. Fitzgerald Pub. Co. v. Baylor Pub. Co., 807 F.2d 1110, 1116 (2d Cir. 1986). “Case law reflects a wide range of awards where there have been infringing uses of photographs.” Burch v. Nyarko, No. 06-cv-7022 (LAP) (GWG), 2007 WL 2191615, at *3 (S.D.N.Y. July 31, 2007) (collecting cases). In calculating the appropriate statutory damages award, courts in this Circuit consider:
(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, 144 (2d Cir. 2010). Here, as noted above, Plaintiff seeks a statutory award of $5,000.
With respect to the first factor - Defendant's state of mind - it is already established that Defendant willfully infringed Plaintiff's copyright. (ECF No. 15 ¶ 14.) Indeed, “[c]opyright infringement is deemed willful by virtue of a defendant's default.” Rovio Entm't, Ltd. v. Allstar Vending, Inc., 97 F.Supp.3d 536, 546 (S.D.N.Y. 2015).
With respect to the second factor - Defendant's profits - Plaintiff has not alleged anything with regard to Defendant's profits emanating from the use of the photograph. Thus, this factor is of limited value to the Court's analysis in the instant case.
With respect to the third factor - lost revenue - the Court is also poorly positioned to analyze this factor because Plaintiff did not submit any evidence of actual losses. As other courts have held, although Plaintiff is not obligated to submit such evidence, his failure to do so and “the seeming absence of tangible harm is something the Court may consider.” Mantel v. Smash.com Inc., No. 19-cv-6113 (FPG), 2019 WL 5257571, at *3 (W.D.N.Y. Oct. 17, 2019). Thus, the Court infers from the lack of evidence of lost revenue that any revenue lost by Plaintiff as a result of Defendant's infringement is de minimis. Seelie v. Original Media Grp., No. 19-cv-5643 (BMC), 2020 WL 136659, at *4 (E.D.N.Y. Jan. 12, 2020). Accordingly, this factor is neutral with respect to the $5,000 statutory award Plaintiff seeks.
With respect to the fourth factor - deterrence - there is undeniable value in assessing statutory damages against defendants who, like Defendant in this case, are in the publishing business, because such defendants are in a position to repeat their infringing activity. See Van Der Zee v. Greenidge, No. 03-cv-8659 (RLE), 2006 WL 44020, at *2 (S.D.N.Y. Jan. 6, 2006). Accordingly, and because the damages sought are not unreasonably high, this factor weighs in favor of Plaintiff's request.
Finally, both the fifth and the sixth factors are mostly irrelevant here, as Defendant has defaulted and the proceedings in this case have been exceedingly limited.
Based on this analysis, I conclude that a statutory award of $5,000 is appropriate, given the circumstances of this case. This amount is likely “a substantial multiple of [Plaintiff's] licensing fee, ” and thus will “satisfy the dual purposes of statutory damages-compensation and deterrence.” Bass v. Diversity Inc. Media, No. 19-cv-2261 (AJN), 2020 WL 2765093, at *5 (S.D.N.Y. May 28, 2020) (cleaned up and collecting cases).
Furthermore, and as noted above, Plaintiff seeks $350 in attorney's fees and $440 in costs. The Copyright Act permits an award of reasonable attorney's fees and costs to a prevailing party. See 17 U.S.C. § 505. In exercising its discretion to award fees and costs, a court considers a range of equitable factors, “including the non-prevailing party's frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case), together with the need in particular circumstances to advance considerations of compensation and deterrence.” Sheldon v. Plot Commerce, No. 15-cv-5885 (CBA) (CLP), 2016 WL 5107072, at *18 (E.D.N.Y Aug. 26, 2016) (citation omitted). “The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 186 (2d Cir. 2008) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, (1983)). The hourly rate should be “in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). “In determining what a reasonable hourly rate is, the court should not only consider the rates approved in other cases in the District, but should also consider any evidence offered by the parties. The Court is also free to rely on its own familiarity with prevailing rates in the District.” Noble v. Crazetees.com, No. 13-cv-5086 (PAE) (HBP), 2015 WL 5697780, at *9 (S.D.N.Y. Sept. 28, 2015) (citations omitted).
With the above principles in mind, this Court finds that the modest attorney's fees and costs sought should be awarded. The time records included in Plaintiff counsel's declaration indicate that Plaintiff's counsel only spent one hour working on this matter, for a total of $350 in attorney's fees. (ECF No. 15 ¶ 17.) This time included drafting the application for default judgment and the attorney declaration itself. (Id.) The declaration also sets forth the applicable costs for a $400 court filing fee and a $40 personal service fee. (Id.)
Similar cases in this District indicate that courts regularly approve hourly rates of $350 to $500 (depending on attorney experience) in copyright cases. See Bass, 2020 WL 2765093, at *6. Accordingly, I find that Plaintiff should be awarded attorney's fees at a rate of $350 per hour.
Further, I find that the single hour of time counsel billed is a reasonable amount of time for the legal work required to prosecute this action thus far. Therefore, I recommend approving the hourly rate of $350 for one hour for a total attorney's fees award of $350. Moreover, the $440 sought in costs are altogether reasonable. Therefore, Plaintiff should be awarded $440 in costs.
CONCLUSION
For the reasons set forth above, I respectfully recommend that the Court enter judgment for Plaintiff against Defendant in the amount of $5,000 in statutory damages under the Copyright Act. I further recommend that the Court award $350 in attorney's fees and $440 in costs.
Respectfully Submitted, NOTICE
The Defendant shall have seventeen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). Plaintiff shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure.
If the Plaintiff files written objections to this Report and Recommendation, the Defendant may respond to Plaintiff's objections within seventeen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Alternatively, if Defendant files written objections, the Plaintiff may
respond to such objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2); see also Fed.R.Civ.P. 6(a), (d). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable John G. Koeltl at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Koeltl. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).