Opinion
3:20-cv-00343-AC
12-07-2020
WB MUSIC CORP., SEVEN PEAKS MUSIC, THAT WAS ZZ MUSIC, MUSIC FROM THE BOARD WALK, UNIVERSAL MUSIC CORPORATION, DIRTY DRE MUSIC, LIL VIDAL MUSIC, TOILET BRAIN MUSIC, NAUGHTY MUSIC, NEUTRAL GRAY MUSIC, PURE LOVE MUSIC, UH OH ENTERTAINMENT, INC., and WUT' SHAWAN-A DO MUSIC, INC., Plaintiffs, v. DONALD HARVEY, Defendant.
Cassandra Mercer & Vicki L. Smith, Lane Powell PC, 601 SW Second Avenue, Suite 2100, Portland, Oregon 97204. Attorneys for Plaintiffs.
Cassandra Mercer & Vicki L. Smith, Lane Powell PC, 601 SW Second Avenue, Suite 2100, Portland, Oregon 97204. Attorneys for Plaintiffs.
OPINION AND ORDER
Karin J. Immergut, United States District Judge
On March 3, 2020, Plaintiffs filed this action alleging copyright infringement based on public performances of Plaintiffs' copyrighted musical compositions at Defendant Donald Harvey's place of business, Dr. Feelgood's Pub in Aloha, Oregon. ECF 1 at ¶¶ 3-4. The Clerk entered Defendant's default under Federal Rule of Civil Procedure 55(a) on August 6, 2020. ECF 15. Plaintiffs now move for default judgment under Rule 55(b). ECF 17. Plaintiffs seek injunctive relief pursuant to 17 U.S.C. § 502; statutory damages pursuant to 17 U.S.C. § 504(c); and attorneys' fees and costs pursuant to 17 U.S.C. § 505. No response has been filed.
For the following reasons, Plaintiffs' Motion is GRANTED subject to the modification discussed below.
BACKGROUND
Defendant Donald Harvey is the owner and manager of Dr. Feelgood's Pub, located at 20419 Southwest Tualatin Valley Highway, Aloha, Oregon 97003. ECF 1 at ¶ 6. Defendant had and still has “the right and ability to supervise and control the activities that take place at Dr. Feelgood's Pub, including the right and ability to supervise and control the public performance of musical compositions at the establishment.” Id. at ¶ 8.
Plaintiffs are members of the American Society of Composers, Authors, and Publishers (“ASCAP”), “a membership association that represents, licenses, and protects the public performance rights of its more than 735, 000 songwriter, composer, and music publisher members.” Id. at ¶ 10. Each ASCAP member, including Plaintiffs, grants to ASCAP a nonexclusive right to license the performance rights in that member's copyrighted musical compositions. Id. at ¶ 11. “ASCAP licenses public performances of its members' musical works, collects license fees associated with those performances, and distributes royalties to its members, less ASCAP's operating expenses.” Id.
Since at least October 2012, ASCAP has communicated to Defendant the risks of performing ASCAP's members' music without authorization and offered license agreements so that Defendant may lawfully perform the music. ECF 18 at ¶¶ 5, 12; see also ECF 18-12 (telephone contact with Defendant on January 5, 2015); ECF 18-13 (telephone contact with Defendant on March 27, 2015); ECF 18-14 (telephone contact with Defendant on February 4, 2019). This Court notes, however, that neither the Complaint nor the instant Motion allege any specific instances of infringement before August 2019. At a telephonic hearing held on December 4, 2020, Plaintiff's counsel stated that it is generally assumed, given the large repertoire of ASCAP music, that establishments which play music are infringing ASCAP members' copyrights.
On two separate occasions in August 2019, ASCAP engaged independent investigators to visit Dr. Feelgood's Pub and make “contemporaneous lists of all songs performed that [they] could readily identify.” ECF 18 at ¶¶ 14-15. On the evening of August 9, 2019, and into the early hours of August 10, 2019, Investigator Jeff Clark identified two songs in which ASCAP members own the copyrights. Id. at ¶¶ 16, 19; ECF 18-15 (Clark August 9-10 Investigator's Report). On the evening of August 31, 2019, and into the early hours of September 1, 2019, Investigator Denis Sichner identified three songs in which ASCAP members own the copyrights. ECF 18 at ¶¶ 18, 19. Plaintiffs in this action became such plaintiffs “by reason of the choice of songs performed at Dr. Feelgood's Pub on the evenings of the investigations and are, for all intents and purposes, representatives of all of ASCAP's members.” Id. at ¶ 19.
At the time of these performances, Defendant had not obtained a license from ASCAP or from any of the Plaintiffs. Id. at ¶ 20. As such, these performances were unauthorized and infringed Plaintiffs' copyrights. Id. at ¶ 21; see also Id. at ¶¶ 24-28 (establishing ownership of the copyrights at issue).
Plaintiffs filed their Complaint on March 3, 2020. ECF 1. Plaintiffs effected “office service” pursuant to Oregon Rule of Civil Procedure 7D(2)(c) by delivering the required documents to the person apparently in charge at Defendant's Pub on March 5, 2020, and mailing the documents via First Class Mail, postage pre-paid, to Defendant's Pub on March 6, 2020. ECF 7 (affidavit of service); see also Fed. R. Civ. P. 4(e)(1) (an individual may be served in a judicial district of the United States “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made”). Plaintiffs then took no action in this case for nearly four months.
On July 1, 2020, Magistrate Judge John V. Acosta ordered Plaintiffs to show cause “why this case should not be dismissed for lack of prosecution” pursuant to Local Rule 41.2. ECF 8. Plaintiffs responded on July 21, 2020, citing the COVID-19 pandemic and its effect on Oregon's restaurant and bar industry. ECF 9 at 3. Plaintiffs “took a more restrained approach than they ordinarily might in the event of a defendant's default, ” making “extra efforts” to contact Defendant. Id. at 3-4. Defendant did not respond to these communications. Id. at 4. Judge Acosta was satisfied by Plaintiffs' showing and set aside the order to show cause. ECF 11. Thereafter, Plaintiffs moved for entry of default, ECF 12, which Judge Acosta granted, ECF 14. See also ECF 15 (Clerk's entry of default). Plaintiffs' Motion for Default Judgment is now before this Court. ECF 17.
ASCAP asserts that “Defendant has ‘saved' or ‘avoided' approximately $14,248.00 in ASCAP license fees that should have been paid to ASCAP for the period from October 2012 through present had the establishment Dr. Feelgood's Pub been properly licensed during that time.” ECF 18 at ¶ 29. ASCAP also asserts that its investigatory costs totaled $1,754.94. Id. at ¶ 30.
LEGAL STANDARDS
Following the Clerk's entry of default under Federal Rule of Civil Procedure 55(a), the general rule is that “the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.” TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (quoting Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)). The court, however, does not accept as admitted legal conclusions or facts that are not well-pleaded. DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007). “[N]ecessary facts not contained in the pleadings, and claims which are legally insufficient, are not established by default.” Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992) (citing Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978)).
After the clerk has entered a defendant's default, the court may enter a default judgment against that party. See Fed. R. Civ. P. 55(b)(2). The court's decision whether to enter a default judgment is discretionary. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). The Ninth Circuit has identified seven factors to guide a district court's consideration of whether to enter a default judgment:
(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action[, ] (5) the possibility of a dispute concerning material facts[, ] (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). The “starting point, ” however, “is the general rule that default judgments are ordinarily disfavored.” Id. at 1472.
DISCUSSION
As a preliminary matter, the Court is satisfied that it has personal jurisdiction over Defendant based on the facts in this record. A district court “has an affirmative duty” to determine whether it has personal jurisdiction over the defendant before entering a default judgment. In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). The court “may dismiss an action sua sponte” where personal jurisdiction does not exist. Id. However, it must first give the plaintiff moving for a default judgment the opportunity to show facts supporting the exercise of personal jurisdiction. Id. at 712-13.
Plaintiffs have alleged sufficient facts to support the exercise of general personal jurisdiction in this case. Since at least October 2012, Defendant “has owned, controlled, managed, operated, and maintained” the Pub in question, ECF 18 at ¶ 9, which is located about twelve miles from this courthouse in Aloha, Oregon. Defendant's contacts are “the sort that approximate physical presence.” Bancroft & Masters, Inc. v. Augusta Nat. Inc., 223 F.3d 1082, 1086 (9th Cir. 2000), overruled in part on other grounds by Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199 (9th Cir. 2006) (en banc).
A. Procedural Requirements
Plaintiffs have satisfied the requirements of Local Rule 55 and Federal Rule of Civil Procedure 55. Plaintiffs requested, ECF 12, and received, ECF 15, the Clerk's entry of default. Defendant is not a minor nor incompetent. Defendant has not appeared personally or by a representative, so he is not entitled to written notice of the application. Fed.R.Civ.P. 55(b); see also Stephen Wurth Photography, Inc. v. Wetpaint.com, Inc., No. SA CV 16-2101-DOC, 2018 WL 5266861, at *2 (C.D. Cal. Oct. 5, 2018) (determining plaintiffs' “procedural compliance”).
Finding procedural compliance, the Court now turns to Plaintiffs' Motion for Default. On December 4, 2020, this Court held a telephonic status conference with Plaintiffs' counsel regarding the Instant motion.
B. Eitel Factors
All Eitel factors weigh in favor of default judgment as to all claims.
1. Factor 1: Prejudice to Plaintiff
The first Eitel factor “considers whether the plaintiff will suffer prejudice if default judgment is not entered.” PepsiCo, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d 1172, 1177 (C.D. Cal. 2002). Plaintiffs contend that without entry of default judgment, they “would be denied the opportunity to recover damages for the identified past acts of infringement” and, given that Dr. Feelgood's Pub is still open and operating, they would have no available means of preventing Defendant “from infringing their rights in the future.” ECF 17 at 10. Plaintiffs also note “Defendant's repeated refusals to obtain an ASCAP License.” Id.; see also Vogel v. Rite Aid Corp., 992 F.Supp.2d 998, 1007 (C.D. Cal. 2014) (noting defendant's “unwillingness to cooperate and defend” and finding this factor weighed in favor of default judgment).
Given Defendant's lack of cooperation in this suit, repeated refusals to obtain a license, the potential lack of remedy for identified acts of infringement, and the risk of future infringement, Plaintiffs would suffer prejudice if default judgment is not entered. This factor thus weighs in favor of default judgment.
2. Factors 2 & 3: The Merits of Plaintiffs' Substantive Claim and the Sufficiency of the Complaint
The second and third Eitel factors “require that a plaintiff state a claim on which [it] may recover.” PepsiCo, 238 F.Supp.2d at 1175; see also Curtis v. Illumination Arts, Inc., 33 F.Supp.3d 1200, 1211 (W.D. Wash. 2014) (“The second and third Eitel factors . . . are often analyzed together.”).
“There are only two elements necessary for a copyright owner to make out a prima facie case of copyright infringement: (1) ownership of the copyright by the plaintiff; and (2) copying by the defendant.” Lamb v. Starks, 949 F.Supp. 753, 756 (N.D. Cal. 1996) (citing Hustler Mag., Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1151 (9th Cir. 1986)) (emphasis omitted).
In their Complaint, Plaintiffs sufficiently allege and show ownership of the copyrights in the five infringed works and Defendant's infringement. See ECF 1 at ¶ 16-20; ECF 1 at 6-7 (chart of copyright registration and infringement). In support of this Motion, Plaintiffs provide further evidence of ownership. See ECF 18-17 (certificate of registration as of May 22, 2015, for “Worth It, ” naming WB Music as a copyright claimant); ECF 18-18 (certificate of registration as of December 28, 2012, for “365 Days, ” naming Seven Peaks Music, That Was ZZ Music, and Music From The Board Walk as copyright claimants); ECF 18-19 (certificate of registration as of May 8, 2006, for “Yo (Excuse Me Miss), ” naming Universal Music Corp., Dirty Dre Music, and Lil Vidal Music among copyright claimants); ECF 18-20 (certificate of registration as of September 25, 1998, for “Zoot Suit Riot, ” naming Toilet Brain Music as a copyright claimant); ECF 18-21 (certificate of registration as of September 22, 1998, for “Too Close, ” naming Uh Oh Entertainment, Wut' Shawan-A Do Music, Neutral Grey Music, Pure Love Music, and Naughty Music among copyright claimants). Plaintiffs also provided further evidence of infringement. See ECF 18-15 at 8, 9 (investigator's report of August 9, 2019, identifying “Too Close” by Next and “Worth It” by Fifth Harmony); ECF 18-16 at 5, 7 (investigator's report of August 31, 2019, identifying “365 Days” by ZZ Ward, “Zoot Suit Riot” by Cherry Poppin Daddy's, and “Yo Excuse Me Miss” [sic] by Chris Brown). Therefore, Plaintiffs have sufficiently pled copyright infringement as to the five identified works and their substantive claim is meritorious. The second and third Eitel favors therefore weigh in favor of default judgment.
Plaintiffs, the owners of the copyrights at issue, have standing to bring this action, while ASCAP, the owner of a non-exclusive license, does not. See Granite Music Corp. v. Ctr. St. Smoke House, Inc., 786 F.Supp.2d 716, 724 (W.D.N.Y. 2011) (finding that named plaintiffs have standing but ASCAP does not and allowing the suit to proceed); Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27, 32 n.3 (2d Cir. 1982) (citing 17 U.S.C. § 501(b)) (explaining that “the Copyright Law is quite specific in stating that only the ‘owner of an exclusive right under a copyright' may bring suit), superseded on other grounds by rule as stated in Fed. Treasury Enter. Sojuzplodoimport v. SPI Spirits Ltd., 726 F.3d 62, 84 (2d Cir. 2013); Righthaven LLC v. Hoehn, 716 F.3d 1166, 1170 (9th Cir. 2013) (explaining that the owner of an “exclusive license of particular rights” may bring an infringement action but others, such as the licensor or a non-exclusive licensee, may not).
3. Factor 4: The Sum of Money at Stake in the Action
Plaintiffs seek an award of statutory damages and an award of their attorney's costs and fees, as well as permanent injunctive relief. “Default judgment is disfavored where the sum of money at stake is too large or unreasonable in relation to defendant's conduct.” Vogel v. Rite Aid Corp., 992 F.Supp.2d 998, 1012 (C.D. Cal. 2014). Here, the monetary award, “plus any amount that would have to be spent to comply with an injunction, would be the entirety of [Defendant's] liability should the court grant default judgment.” Id. Due to the discretionary nature of a court's statutory damages award under the Copyright Act, this factor may still weigh in favor of default judgment even when a plaintiff seeks an “excessive” amount because “the Court may grant a lesser award that will weigh in favor of granting default judgment.” Stephen Wurth Photography, 2018 WL 5266861, at *4.
This Court finds that the injunction sought is reasonable and necessary given Defendant's actions and failure to appear and defend. See Vogel, 992 F.Supp.2d at 1012. However, Plaintiffs also seek statutory damages based on roughly eight years of “avoided” licensing fees without evidence of violations before August 2019, which this Court finds excessive. Nevertheless, because this Court exercises its discretion to reduce the statutory damages award to a reasonable amount, this Court finds that this factor weighs in favor of default judgment.
4. Factor 5: The Possibility of a Dispute Concerning Material Facts
The fifth Eitel factor considers whether a dispute of material facts is likely. “Where the [p]laintiff's complaint is well-pleaded and the defendant makes no effort to properly respond, the likelihood of disputed facts is very low.” 3M Co. v. Phx. Auto. Refinishing Co., CV 17-00649-RSWL-DTB, 2018 WL 1989536, at *5 (C.D. Cal. Apr. 25, 2018) (quoting Warner Bros. Home Ent., Inc. v. Slaughter, No. CV 13-0892-DOC RNB(x), 2013 WL 5890682, at *8 (C.D. Cal. Oct. 30, 2013)). As explained above, Plaintiffs' complaint is well-pleaded. Defendant has made no effort to respond. See ECF 17 at 1-2. This factor weighs in favor of default judgment.
5. Factor 6: Whether the Default Was Due to Excusable Neglect
This factor considers whether the defendant's default was due to excusable neglect. Because Defendant was properly served by office service under Oregon law in early March 2020, ECF 7, this factor favors default judgment. See Nat'l Photo Grp., LLC v. Pier Corp., Case No. SACV 13-1165-DOC, 2014 WL 12576641, at *6 (C.D. Cal. Mar. 10, 2014); 3M Co., 2018 WL 1989536, at *5.
6. Factor 7: The Strong Policy Preference for Decisions on the Merits
The seventh Eitel factor considers the strong policy preference in favor of decisions on the merits. However, “[w]here the [d]efendant's failure to appear makes decision on the merits impossible, default judgment is appropriate.” Warner Bros., 2013 WL 5890682, at *4 (citing Craigslist, Inc. v. Naturemarket, Inc., 694 F.Supp.2d 1039, 1061 (N.D. Cal. 2010)); see also 3M Co., 2018 WL 1989536, at *5. Here, Defendant has failed to appear. ECF 17 at 1-2. Thus, a decision on the merits is impossible, and this factor weighs in favor of default judgment.
C. Remedies
Federal Rule of Civil Procedure 54(c) limits relief in default judgment to what is demanded in the pleadings. Fed.R.Civ.P. 54(c). In the instant Motion, Plaintiffs seek permanent injunctive relief; $8,000.00 per infringement for a total award of $40,000.00; and an award of costs and fees totaling $22,592.53. ECF 17 at 14-15. In the Complaint, Plaintiffs seek permanent injunctive relief; damages as the Court considers just pursuant to 17 U.S.C. § 504(c)(1), which is not more than $30,000.00 nor less than $750 per infringement; and costs including a reasonable attorney's fee. ECF 1 at 5. The remedies requested in the Motion “are not different from and do not exceed the relief prayed for in the Complaint.” Philip Morris USA Inc. v. Banh, No. CV 03-4043 GAF, 2005 WL 5758392, at *6 (C.D. Cal. Jan. 14, 2005). Accordingly, the Court considers each requested form of relief in turn.
1. Injunctive Relief
Plaintiffs request “permanent injunctive relief prohibiting Defendant from performing publicly, or from causing or permitting the public performance of, any composition owned and/or controlled by ASCAP's members at Dr. Feelgood's Pub, or any other place owned, controlled, managed, or operated by Defendant.” ECF 17 at 15. The Copyright Act provides for the remedy of injunctive relief in cases of infringement. 17 U.S.C. § 502.
Notably, while Plaintiffs claim that Defendant infringed the copyrights held in five works, they seek an injunction prohibiting the unauthorized performance of any ASCAP-licensed music. ECF 1 at 5. They state that “plaintiffs in this type of action are, in essence, representative of all of ASCAP's members” and cite a number of cases in which courts, deciding cases involving only a few specific instances of infringement, enjoin public performance of all ASCAP-licensed music. ECF 17 at 13. See, e.g., Bertram Music Co. v. Yeager Holdings of Cal., Inc., Civ. No. S-07-1766 LEW GGH, 2008 WL 2055480, at *2 (E.D. Cal. May 6, 2008) (enjoining Defendant from performing any of the songs in the ASCAP repertory without prior authorization); Controversy Music v. Shiferaw, No. C03-5254 MJJ, 2003 WL 22048519, at *2 (N.D. Cal. July 7, 2003) (same); see also Odnil Music Ltd. v. Katharsis LLC, No. CIV S-05-0545 WBSJFM, 2006 WL 2545869, at *7, *9 (E.D. Cal. July 21, 2006) (noting that, in similar cases, “courts now routinely enjoin defendants from performing any and all music in the ASCAP repertory” and enjoining Defendant from performing all musical compositions in ASCAP's repertory).
The Court finds this reasoning persuasive and accordingly orders that Defendant is permanently enjoined from performing publicly, or from causing or permitting the public performance of, any composition owned and/or controlled by ASCAP's members at Dr. Feelgood's Pub, or any other place owned, controlled, managed, or operated by Defendant, without a license to do so.
2. Statutory Damages
Plaintiffs request an award of “$8,000.00 per infringement for a total award of $40,000.00.” ECF 17 at 14. They state that this “represent[s] an amount that is just less than three times the amount of licensing fees that Defendant would have been required to pay had [he] obtained an ASCAP license and properly paid the license fees” beginning in October 2012, when ASCAP first contacted Defendant. Id. at 13-14. Plaintiffs submitted the affidavit of R. Douglas Jones, an ASCAP Manager, Business and Legal Affairs. ECF 18. Mr. Jones states that “Defendant has ‘saved' or ‘avoided' approximately $14,248.00 in ASCAP license fees that should have been paid to ASCAP for the period from October 2012 through present.” Plaintiffs also assert that Defendant's infringement was willful. ECF 1 at ¶ 3; ECF 17 at 3. Plaintiffs state that since at least October 2012, ASCAP representatives have attempted to contact Defendant “to offer Defendant the opportunity to obtain an ASCAP license for Dr. Feelgood's.” ECF 17 at 5; see also ECF 18 at ¶¶ 8-13. “These contacts were by phone and letter, and often included a sample licensing agreement and informational material, all of which were designed to inform defendant of the need to secure a license with ASCAP in order to perform their works lawfully.” Controversy Music, 2003 WL 22048519, at *2; see ECF 18-1 through 18-14. Mr. Jones also states that ASCAP incurred $1,754.94 in out-of-pocket investigative costs to support this action. ECF 18 at ¶ 30; ECF 17 at 7.
“Under the 1976 Copyright Act, the plaintiff may elect to recover either actual or statutory damages.” Peer Int'l Corp. v. Pausa Records, Inc., 909 F.2d 1332, 1336 (9th Cir. 1990). If the plaintiff elects statutory damages, the “court has wide discretion” in determining the amount. Id. (internal quotation marks and citations omitted). 17 U.S.C. § 504(c) provides for “statutory damages for all infringements involved in the action, with respect to any one work, . . . in a sum of not less than $750 or more than $30,000 as the court considers just.” 17 U.S.C. § 504(c)(1). If the court finds that the infringement was willful, it may in its discretion increase the award to a sum of not more than $150,000. Id. at § 504(c)(2). When measuring statutory damages, the court is guided by “what is just in the particular case, considering the nature of the copyright, the circumstances of the infringement and the like, . . . but with the express qualification that in every case the assessment must be within the prescribed [maximum or minimum].” Peer Int'l Corp., 909 F.2d at 1336 (quoting F.W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 232 (1952)). Under Rule 8(a)(3), Plaintiffs' damages must be specific, and Plaintiffs “must ‘prove up' the amount of damages that [they] claim[].” Philip Morris USA Inc. v. Banh, 2005 WL 5758392, at *6; see also Vogel, 992 F.Supp.2d at 1013-14.
Plaintiffs point to various opinions showing that, in ASCAP cases, “courts routinely compute statutory damages . . . between two to six times the license fees defendants ‘saved' by not obeying the Copyright Act.” EMI Mills Music, Inc. v. Empress Hotel, Inc., 470 F.Supp.2d 67, 75 (D.P.R. 2006). Plaintiffs state that their requested sum “falls within the well-established range of damages awarded in ASCAP matters.” ECF 17 at 14; see also Granite Music, 786 F.Supp.2d at 731-33 (awarding statutory damages totaling $30,000.00 where Defendant would have paid $10,877.00 had they been licensed during the relevant time period); EMI Mills Music, Inc., 470 F.Supp.2d at 75-76 (awarding statutory damages of $60,000.00 where licensing fees would have been $18,000.00); Odnil Music Ltd, 2006 WL 2545869, at *9 (awarding statutory damages totaling $12,000.00 where Defendant would have paid $3,401.71 had they been licensed during the relevant time period).
Here, Defendant “repeatedly rejected and ignored ASCAP's offerings.” EMI Mills Music, Inc., 470 F.Supp.2d at 75-76. Plaintiffs allege, in conclusory fashion, that throughout the past eight years, “Defendant has continued to present public performances of the copyrighted musical compositions of ASCAP members.” ECF 1 at ¶ 15; see also ECF 17 at 5 (“Defendant continued to perform publicly ASCAP members' music . . .”). However, Plaintiffs allege no specific acts of earlier infringement, and the proffered “evidence of infringement” consists solely of investigative reports concerning August 2019. See ECF 17 at 6; ECF 18 at ¶ 14. This Court agrees with the other opinions Plaintiffs cite in finding that the alleged August 2019 infringing acts were willful, because Defendant was clearly “on notice” that those infringing performances of ASCAP music constituted copyright infringement. ECF 17 at 5; see also Granite Music Corp., 786 F.Supp.2d at 736-37 (finding willful infringement by defendant in ASCAP litigation on a motion for default judgment). However, this Court does not agree with those opinions to the extent they base their damages calculations on defendants' conduct (i.e., rejecting ASCAP licensing overtures) during prior years during which no specific acts of infringement are alleged.
Accordingly, this Court's calculation of damages will only reflect the acts of infringement alleged and evinced in the record. The five alleged acts of infringement occurred in August 2019. Plaintiffs' evidence shows that the relevant licensing period was between October 15, 2018, and October 14, 2019. ECF 18-10 at 16. The license fee stated for that period was $2,159.85. Id. Because there are five alleged acts of infringement during August 2019, this Court will exercise its discretion to multiply this number by five. Because this Court determines that the infringing acts were willful, and in the interest of deterrence, this Court will further multiply this amount by two. The statutory damages amount is therefore $21,598.50; the Court will round up to $21,600.00. Accordingly, the statutory damages award for each of the five alleged acts of infringement is $4,320.00.
D. Attorney's Fees and Costs
Plaintiffs request an award of costs and fees totaling $22,592.53. ECF 17 at 14. The Copyright Act provides that the court may award full costs by or against any party and may award a reasonable attorney's fee to the prevailing party. 17 U.S.C. § 505. “The most important factor in determining whether to award fees under the Copyright Act, is whether an award will further the purposes of the Act.” SOFA Ent., Inc. v. Dodger Prods., Inc., 709 F.3d 1273, 1280 (9th Cir. 2013) (quoting Mattel, Inc v. MGA Ent., Inc., 705 F.3d 1108, 1111 (9th Cir. 2013)).
With respect to costs, Plaintiffs incurred $578.53 due to the filing fee and process service. ECF 19-5 at 5. The Court finds the costs reasonable and awards $578.53 to Plaintiffs. See Nat'l Photo Grp., 2014 WL 12576641, at *5 (awarding $465, representing the total for filing fees and service of process, in default judgment copyright infringement action); 3M Co., 2018 WL 1989536, at *7 (awarding “$10,515.39 in costs, including filing and service fees and translation costs for service under the Hague Convention”).
With respect to attorney's fees, in Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994), the Supreme Court provided a nonexclusive list of factors to guide a court's discretionary decision concerning the award of attorney's fees to a prevailing party in a copyright action: “frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.” 510 U.S. at 534 n.19 (internal citations and quotation marks omitted). The Ninth Circuit has “added factors that ‘may be considered' and ‘need not all be met': the degree of success obtained in the litigation, the purposes of the Copyright Act, and ‘whether the chilling effect of attorney's fees may be too great or impose an inequitable burden on an impecunious [litigant].'” Glacier Films (USA), Inc. v. Turchin, 896 F.3d 1033, 1037 (9th Cir. 2018) (quoting Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 675 (9th Cir. 2017)).
The Court finds that the Fogerty factors weigh in favor of an award of attorney's fees. Plaintiffs were completely successful in their claims, showing that “their claims were not frivolous or objectively unreasonable.” 3M Co., 2018 WL 1989536, at *6. Plaintiffs were motivated to protect their intellectual property. Id. The award of attorney's fees “serve[s] the purpose of encouraging private enforcement and deterring infringements.” Frank Music Corp. v. Metro-Goldwyn-Mayer Inc., 886 F.2d 1545, 1556 (9th Cir. 1989); see also Nat'l Photo Grp., LLC, 2014 WL 12576641, at *4 (“Because the Court found willful infringement, all [Fogerty] factors support awarding reasonable attorneys' fees.”). The Court further finds that the Ninth Circuit's additional factors of degree of success and the purposes of the Copyright Act weigh in favor of awarding attorney's fees. Only the potential risk of inequitably burdening an “impecunious” litigant, Perfect 10, 847 F.3d at 675, given the COVID-19 pandemic and its effect on restaurants, gives the Court pause. However, determining Defendant's “impecunious[ness]” requires speculation as Defendant has refused to appear. As the additional Ninth Circuit factors “need not all be met, ” nor even considered, id., the Court concludes that an award of reasonable attorney's fees is warranted.
After determining that an award of reasonable attorney's fees is warranted, a court must determine what amount is reasonable. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Nat'l Photo Grp., LLC, 2014 WL 12576641, at *4. “Courts determine the amount of a fee award by determining a ‘lodestar figure,' which is obtained by multiplying the number of hours reasonably expended on a matter by a reasonable hourly rate.” UN4 Prods., Inc. v. Primozich, 372 F.Supp.3d 1129, 1136 (W.D. Wash. 2019). The reasonableness of a requested fee is evaluated “with reference to the prevailing rates charged by attorneys of comparable skill and experience in the relevant community.” Id. The relevant community is generally “the forum in which the district court sits.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008). A district court's reliance on market rates from years past may constitute abuse of discretion. Id. at 981 (“[A] district court abuses its discretion to the extent it relies on cases decided years before the attorneys actually rendered their services.”). “After making that computation, the district court then assesses whether it is necessary to adjust the presumptively reasonable lodestar figure on the basis of the Kerr factors that are not already subsumed in the initial lodestar calculation.” Morales v. City of San Rafael, 96 F.3d 359, 363-64 (9th Cir. 1996). A “strong presumption exists that the lodestar figure represents a reasonable fee, and therefore, it should only be enhanced or reduced in rare and exceptional cases.” Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 n.4 (9th Cir. 2000) (quoting Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986)) (internal quotation marks and citations omitted).
The Kerr factors, which originate in Kerr v. Screen Guild Extras, Inc., 526 F.2d 67, 70 (9th Cir.1975), cert. denied, 425 U.S. 951 (1976), are as follows: “(1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the ‘undesirability' of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases.” Morales, 96 F.3d at 364 n.8.
Plaintiffs have provided a declaration by Cassandra Mercer and an accompanying itemized list detailing the legal work performed on this matter, which results in a total fee of $22,014.00. The itemized list provides the work performed by Ms. Mercer and Ms. Vicki L. Smith. ECF 19-5 (itemized list). Ms. Mercer, an associate who was admitted to the Oregon State Bar in 2014, charged an hourly rate of $370 on this matter, while Ms. Smith, a shareholder who has been practicing since 1985, charged an hourly rate of $730. ECF 19 at ¶¶ 2 -3. These are the customary hours each attorney charges for legal services. Id. Ms. Mercer and Ms. Smith are attorneys at Lane Powell PC, located in Portland, Oregon. ECF 19 at ¶¶ 1-4. Ms. Mercer provides as exhibits the Oregon State Bar 2017 Economic Survey (“OSB Survey”), ECF 19-1, the 2018 Update of the Morones Survey of Commercial Litigation Fees in Portland, ECF 19-2, a 2015 national survey of billing practices that includes law firms in the Pacific region, ECF 19-3, and a 2014 national survey of intellectual property hourly rates, ECF 19-4.
“This District considers the most recent Oregon State Bar Economic Survey (‘OSB Survey') as its ‘initial benchmark' in determining whether hourly billing rates are reasonable.” Bark v. Northrop, 300 F.R.D. 486, 493 (D. Or. 2014) (quotation marks and citations omitted); LR 54-3(a) (noting in the “Practice Tip” that the OSB Survey is the initial benchmark). “If the rate requested exceeds the average rate reported in the OSB Survey, the burden is on the prevailing party to justify that higher rate.” Bark, 300 F.R.D. at 493 (citations omitted). Attorneys may argue for higher rates based on inflation, specialty, or other factors. LR 54-3. The most recent OSB Survey is from 2017.
The Court finds Ms. Mercer's rate, $370, to be reasonable. It is just above the 2017 OSB survey's 95th percentile for Portland attorneys of her experience (4-6 years), which is $350. ECF 19-1 at 3. Ms. Mercer states that she has “focused [her] practice on intellectual property law since [her] admission to the Oregon State Bar in May 2014. [She] specialize[s] in copyright and trademark law.” ECF 19 at ¶ 2. Given Ms. Mercer's specialty practice, that this is Ms. Mercer's customary rate, and the likely inflation since 2017, this Court finds Ms. Mercer's rate reasonable.
The Court also finds that Ms. Smith's rate of $730 is reasonable. The most recent OSB Survey provides that in 2017, hourly rates for Portland attorneys with more than 30 years of experience ranged from $300 to $610. ECF 19-1 at 5. Because Ms. Smith ordinarily charges $730, likely inflation since 2017, and her 35 years of broad experience, including trying cases involving intellectual property issues, this Court finds that awarding Ms. Smith her $730 hourly rate is reasonable.
For this matter, Ms. Mercer billed Plaintiffs for a total of 37.4 hours, and Ms. Smith billed Plaintiffs for a total of 11.2 hours. ECF 19 at ¶ 10; see also ECF 19-5 at 5 (hours billed totaling 48.6). The Court finds these hours reasonable, given the filings made and the attorneys' efforts to adjust to the COVID-19 pandemic, which disrupted Oregon life immediately after the Complaint was filed. Accordingly, the “lodestar” figure is $22,014.00. The Court declines to adjust this figure based on the Kerr factors, finding that this is not a “rare instance[]” justifying such adjustment. Harris v. Marhoefer, 24 F.3d 16, 18 (1994); Oviatt v. Pearce, 954 F.2d 1470, 1482 (9th Cir. 1992) (“adjustments are to be adopted only in exceptional cases”).
CONCLUSION
For the foregoing reasons, the Court GRANTS as amended Plaintiffs' Motion for Default Judgment, ECF 17. The Court ORDERS that Defendant Donald Harvey pay Plaintiffs $21,600.00 in statutory damages; $22,014.00 in fees; and $578.53 in costs. Defendant is permanently enjoined from performing publicly, or from causing or permitting the public performance of, any composition owned and/or controlled by ASCAP's members at Dr. Feelgood's Pub, or any other place owned, controlled, managed, or operated by Defendant, without a license to do so.
IT IS SO ORDERED.