Barry Rosen v. Michael Medlin et al

Filing 70

ORDER GRANTING PLAINTIFFS MOTION FOR DEFAULT JUDGMENT 66 by Judge Otis D. Wright, II: The Court awards a permanent injunction, $15,000.00 in statutory damages, $13,130.00 in attorneys fees and $485.00 in costs. (Made JS-6. Case Terminated.). (lc) Modified on 4/28/2016 (lc).

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United States District Court
Central District of California

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Plaintiff,

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Case No. 2:15-CV-05789-ODW-JC

BARRY ROSEN,

ORDER GRANTING PLAINTIFF’S

v.

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MICHAEL “MIKE” MEDLIN DBA

MOTION FOR DEFAULT

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AFFORDABLE AUTOGRAPHS,

JUDGMENT [66]

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AFFORDABLEAUTOGRAPHSHOLLY

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WOOD; HOLLYWOOD SHOW, LLC, A

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CALIFORNIA LIMITED LIABILITY

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COMPANY; AND DOES 1-10,

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Defendants.
I.

INTRODUCTION

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This matter comes before the Court on Plaintiff Barry Rosen’s Motion for

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Default Judgment against Defendant Michael Medlin. (ECF No. 66.) After carefully

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considering Rosen’s moving papers, in addition to the Court’s own familiarity with

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the allegations in this action, the Motion is GRANTED.
II.
FACTUAL BACKGROUND

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Barry Rosen is a professional photographer and the copyright holder of the
work at issue —two photographs of model Ali Landry. (Rosen Decl. ¶¶ 2– 3, ECF

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No. 66-1.) On July 18, 2015, Rosen discovered one of the copyrighted photographs

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for sale on eBay by the user “affordableautographshollywood.” (Rosen Decl. ¶ 12.)

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Rosen sent eBay a Digital Millennium Copyright Act (DMCA) notice to remove the

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listing; eBay complied with the demand and informed the seller, Medlin, of the

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takedown notice. (Rosen Decl. ¶ 8.) On July 20, 2015 Rosen filed his original

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Complaint against Medlin for copyright infringement. (ECF No. 1.) Medlin was

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properly served and answered on September 2, 2015. (ECF Nos. 13, 23.)

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On September 10, 2015, Rosen filed a First Amended Complaint, alleging that

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Medlin printed the images of Landry off the Internet, obtained the celebrity’s

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signature, and sold the photographs both on eBay and in person. (First Am. Comp.

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(“FAC”) ¶¶ 2–5, ECF No. 25.) After filing the FAC, Rosen claims he attended a

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celebrity memorabilia event at the Hollywood Show, where he found and purchased

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two prints of his Landry photos from Medlin. (Rosen Decl. ¶ 12.) Though served

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with the FAC, Medlin failed to answer the allegations, and on October 8, 2015, the

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Clerk entered default against him. (See ECF Nos. 31, 33.) However, on October, 14,

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2015, Medlin moved to set aside the default, claiming he did not receive the FAC.

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(ECF No. 36.) In support of his motion, Medlin claimed that he found and printed the

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Landry photos from Google and that this formed a basis for a meritorious defense.

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(Id. at 6:6–10, 9:20–21.) The Court granted Medlin’s motion, giving him 14 days to

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respond to the FAC. (ECF No. 54.)

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Medlin once again failed to file a responsive pleading, and on January 8, 2016,

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the Clerk again entered his default. (ECF No. 56.) On January 25, 2016, Medlin

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again moved to set aside the default, claiming that he misunderstood the Court’s

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order. (ECF No. 61.) The Court denied Medlin’s motion. (ECF No. 69.) Rosen

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moved for Default Judgment and this Motion is now before the Court. (ECF No. 66.)

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III.

LEGAL STANDARD

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Default judgment is governed by Federal Rule of Civil Procedure 55 and allows

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the court to enter default judgment “[w]hen a party against whom a judgment for

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affirmative relief is sought has failed to plead or otherwise defend.” Fed. R. Civ. P.

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55(a). It is within the Court’s discretion to enter default judgment following entry of

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default by the clerk. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986); see Fed.

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R. Civ. P. 55(b)(2).

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Amended Complaint, all of the allegations therein, aside from the amount of damages,

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are deemed admitted. Fed. R. Civ. P. 8(b)(6); Geddes v. United Fin. Grp., 559 F.2d

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557, 560 (9th Cir. 1977).

Moreover, in light of Medlin’s failure to answer the First

IV.

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DISCUSSION

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In determining whether an entry of default judgment is appropriate, the Ninth

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Circuit has identified seven factors for district courts to consider: (1) the possibility of

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prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the

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sufficiency of the complaint, (4) the sum of money at stake in the action; (5) the

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possibility of a dispute concerning material facts; (6) whether the default was due to

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excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil

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Procedure favoring decisions on the merits. Eitel, 782 F.2d at 1471–72. All of the

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Eitel factors weigh in favor of granting default judgment on Rosen’s copyright

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infringement claim. The Court addresses each factor in turn.

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A.

Eitel Factors

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The first Eitel factor considers whether a plaintiff would suffer prejudice if

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default judgment were not entered. PepsiCo, Inc. v. Cal. Security Cans, 238 F. Supp.

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2d 1172, 1177. Here, Rosen would suffer prejudice because he would be left without

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a remedy given Medlin’s refusal to actively participate in this litigation or in

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settlement discussions. See id.

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The second and third Eitel factors—the merits of plaintiff’s substantive claim

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and the sufficiency of the complaint—are often discussed in tandem. See id. at 1175.

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Here, the FAC alleges willful copyright infringement. Specifically, Rosen contends

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that he is the copyright holder of the Landry photographs and that Medlin willfully

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violated Rosen’s exclusive rights under the Copyright Act by (1) reproducing the

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copyrighted work and (2) distributing copies of the copyrighted work to the public by

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offering them for sale. (FAC ¶¶ 2–5.) To succeed on a copyright infringement claim,

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a plaintiff must establish (1) ownership of a valid copyright and (2) that the defendant

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violated at least one of the exclusive rights of the copyright holder. 17 U.S.C. § 106.

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Moreover, a plaintiff sustains his burden of proving willfulness “by showing [the]

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defendant knew or should have known it infringed [the plaintiff’s] copyright.” UMG

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Recordings, Inc. v. Disco Azteca Distrib., Inc., 446 F. Supp. 2d 1164, 1173 (E.D. Cal.

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2006) (quoting Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522, 1543

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(S.D.N.Y. 1991)).

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Rosen sufficiently pleads factual allegations to sufficiently state the elements of

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his claim. As alleged in the FAC, and evidenced by Certificates of Registration from

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the U.S. Copyright office, Rosen owns the copyright to the Ali Landry photographs at

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issue. (FAC ¶ 15; Rosen Decl., Ex. 1.) Rosen alleges that he did not grant Medlin

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permission to copy or distribute the photographs and that Medlin went on to sell prints

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of the copyrighted work on eBay (under the moniker “affordableautographs

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hollywood”) and at trade shows such as Comic-Con and the Hollywood Show. (FAC

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¶¶ 16, 26.) Rosen notes that Medlin continued to sell the copyrighted photos even

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after he received a DMCA notice from eBay and months after he was served with the

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original complaint. (Rosen Dec. ¶ 12.) And as previously determined by the Court,

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Medlin failed to put forward a meritorious defense based on fair use. (See Order

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Denying Mot. to Set Aside Entry of Default 5:19–20, ECF No. 69.) Accordingly, the

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Court finds that the second and third Eitel factors favor granting default judgment.

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Next, the Court must consider the amount of money at stake in relation to the

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seriousness of Medlin’s conduct. Eitel, 782 F.2d at 1471–72. Here, Rosen seeks an

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amount that consists of discretionary awards and statutory damages provided under

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the Copyright Act. See 17 U.S.C. §§ 504, 505; Elekta Ent. Group, Inc. v. Crawford,

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226 F.D.R. 388, 393 (C.D. Cal. 2005). Hisorically, courts have awarded significant

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damages against a defendant accused of engaging in willful infringement and who

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failes or refuses to respond to the compalint against him. See Phillip Morris U.S.A.

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Inc. v. Castworld Prods., 219 F.R.D. 494, 500 (C.D. Cal. 2003) (awarding damages in

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the amount of $2,000,000 for willful trademark infringement when defendant failed to

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participate in the judicial process); see also Craigslist, Inc. v. Naturemarket, Inc., 694

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F. Supp. 2d 1039, 1060 (N.D. Cal. 2010) (granting large damages and entry of default

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when defendant engaged in willful copyright infringement and failed to participate in

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litigation). Given Medlin’s willful infringement, combined with his failure to actively

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participate in this litigation, this factor favors entry of default judgement.

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The Court also concludes that the next factor, the possibility of a dispute

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concerning material facts, favors entry of default judgment. Because Medlin failed to

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answer the FAC, the facts therein are taken as true. Fed. R. Civ. P. 8(b)(6); Geddes v.

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United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977). Thus, no issues of material fact

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will preclude entry of default judgment.

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The sixth Eitel factor considers whether the default was due to excusable

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neglect. Eitel, 782 F.2d at 1472. Medlin was properly served twice in this case, and

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his two Motions to Set Aside Default indicate that he is clearly aware of the pending

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litigation. (See ECF Nos. 35, 61.) His repeated failure to timely respond coupled with

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his inadequate justifications makes excusable neglect unlikely. (See Order Denying

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Mot. to Set Aside Entry of Default 3:15–16.) Accordingly, this factor favors entry of

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default judgment.

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The final Eitel factor examines whether the strong preference that cases be

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decided on the merits weighs against the entry of default judgment. Eitel, 782 F.2d at

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1472. However, when a defendant’s failure to appear “makes a decision on the merits

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impractical,” entry of default is warranted. Pepisco, 238 F. Supp. 2d at 1177. Here,

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the Court offered Medlin an additional opportunity to defend this suit on the merits by

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setting aside the original entry of default. (See ECF No. 54.) Medlin chose to

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squander his second chance. Medlin’s consistent inability to follow court rules has

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not only caused significant delay, but has also prohibited Rosen from efficiently

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litigating his claim. As a decision on the merits has become increasingly impractical

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due to Medlin’s conduct, the final factor favors an entry of default judgment.

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In sum, after reviewing Rosen’s Motion in light of the factors articulated in

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Eitel, the Court deems entry of default judgment appropriate. The Court now turns to

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Rosen’s requested relief.

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B.

Remedies

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Rosen requests a permanent injunction, statutory damages in the amount of

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$100,000 for willful copyright infringement, and attorney’s fees. (Mot. 15–19.) The

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Court addresses each in turn.

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1.

Permanent Injunction

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The Copyright Act authorizes a court to grant temporary or final injunctions to

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“prevent or restrain infringement of a copyright.” 17 U.S.C. § 502(a). Generally, a

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permanent injunction will be granted when liability has been established and a threat

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of continuing violations exists. MAI Sys. Corp. v. Peak Computer, 991 F.2d 511, 520

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(9th Cir. 1993).

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Here, liability has been established with the entry of default. Medlin’s conduct

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since litigation commenced, specifically his continued sale of Rosen’s copyrighted

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photos, signals a threat of future violations. Thus, an injunction here is appropriate.

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2.

Statutory Damages

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Rosen requests $100,000 in statutory damages for willful copyright

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infringement, noting that in willful infringement cases, courts often award multipliers

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of three (or more) times the unpaid licensing fees as statutory damages. (Mot. 16:20–

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22) (citing Odnil Music, Ltd. v. Katharsis LLC, S-05-0545 WBS JFM, 2006 WL

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2545869, *8 (E.D. Cal. July 21, 2006); Fermanta Int’l Melodies, Inc. v. Champions

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Golf Club, Inc., 712 F. Supp. 1257, 1264 (S.D. Tex. 1989). Rosen argues that he

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routinely receives between $5,000 and $10,000 for a single use, editorial license for

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his photographs and adds that Medlin would have paid $20,000 for proper licenses to

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use both Landry photographs. (Mot. 17:9–11; Rosen Decl. ¶ 21.) He asks the Court

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to apply a multiplier of five for willful misconduct (5 x $20,000) damages. (Mot.

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17:13.)

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infringement and should deter future misconduct by Medlin. (Mot. 17:13–16.)

Rosen argues that this amount falls within the applicable range for willful

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The Copyright Act allows a copyright owner to elect to recover an award of

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statutory damages in lieu of actual damages any time before final judgment is

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rendered. 17 U.S.C. § 504(c)(1). The Act allows for statutory damages in a sum not

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less than $750 or more than $30,000 for all infringements with respect to any one

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work. Id. Furthermore, “[i]n a case where the copyright owner sustains the burden of

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proving, and the court finds, that infringement was committed willfully, the court in

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its discretion may increase the award of statutory damages to a sum of not more than

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$150,000.” Id. § 504(c)(2).

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Although Rosen suggests a multiple of five would be appropriate, the Court is

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guided by “what is just in the particular case, considering the nature of the copyright,

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the circumstances of the infringement and the like.”

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Records, Inc., 909 F.2d 1332, 1336 (9th Cir. 1990). The circumstances of this case

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simply do not warrant an award of $100,000. Medlin found the two Landry images on

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Google, obtained the celebrity’s signature, and sold the prints for roughly $30 dollars.

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(Mot. to Set Aside Entry of Default 6:6–10, ECF No. 36; Rosen Decl., Ex. 2.) Medlin

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was put on notice of his infringing conduct through the DMCA takedown notice,

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however he subsequently sold two of the copyrighted images at trade shows. While

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not taking lightly the seriousness of Medlin’s conduct, the circumstances of this case

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mimic similar copyright lawsuits brought by Rosen in this District. See, e.g., Rosen v.

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Global Net Access, No. CV 10–2721–DMG (E), 2014 WL 2803752 (C.D. Cal. Jan.

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16, 2015) (awarding $45,000 for nine photographs); Rosen v. Netfronts, Inc., No. CV

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12–658 CAS (FFMx), 2013 WL 3467205 (C.D. Cal. July 9, 2013) (awarding $800 for

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four photographs).

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concludes that an award of $7,500 per photograph sufficiently compensates Rosen,

Peer Int’l Corp. v. Pausa

Factoring in the willfulness of Medlin’s conduct, the Court

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while also demonstrating to Medlin that it “costs less to obey” the Copyright Act than

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to violate it. Odnil Music Ltd., 2006 WL 2545869, at *7.

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3.

Attorney’s Fees

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Rosen also requests an award of attorney’s fees. Under the Copyright Act, a

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court may award costs and a reasonable attorney’s fee to the prevailing party. 17

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U.S.C. § 505. The Ninth Circuit has identified five non-exclusive factors that a court

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may consider in deciding whether to award attorney’s fees under section 505: (1) the

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degree of success obtained; (2) frivolousness; (3) motivation; (4) objective

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unreasonableness; and (5) the need to advance considerations of compensation and

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deterrence. Magnuson v. Video Yesteryear, 85 F.3d 1424, 1432 (9th Cir. 1996); Smith

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v. Jackson, 84 F.3d 1213, 1221 (9th Cir. 1996).

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The factors favor awarding attorney’s fees in this case. The foregoing analysis

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indicates that Rosen was successful on the merits and that his claim was not frivolous.

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Rosen adds that attorney’s fees would be appropriate not only because of Medlin’s

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willful conduct, but also because many of the motions filed in this lawsuit could have

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been avoided if Medlin actively participated in this litigation or engaged in settlement

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discussions. (Mot. 18:19–21.) Indeed, Medlin’s consistent inability to follow court

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rules, with no credible explanation for his conduct, resulted in a waste of judicial

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resources. See Sun World, Inc. v. Lizarazu Olivarria, 144 F.R.D. 384, 390 (E.D. Cal.

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1992). The Court also agrees that an award of attorney’s fees against Medlin serves as

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a further reminder against engaging in willful misconduct. See Magnuson, 85 F.3d at

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1432 (noting that in considering attorney’s fees under section 505, a district court

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should “seek to promote the Copyright Act’s objectives”) (quoting Historical

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Research v. Cabral, 80 F.3d 377, 378–79 (9th Cir. 1996)). Accordingly, the Court

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awards Rosen $13,130.00 in attorney’s fees and $485.00 in costs.

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V.

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CONCLUSION

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For the reasons discussed above, the Court hereby GRANTS Rosen’s Motion

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for Default Judgment (ECF No. 66). The Court awards a permanent injunction,

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$15,000 in statutory damages, $13,130.00 in attorney’s fees and $485.00 in costs.

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IT IS SO ORDERED.

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April 27, 2016

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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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