Chosen Figure LLC v. Kerwin Frost Entertainment LLC

Filing 17

ORDER GRANTING MOTION FOR DEFAULT JUDGMENT 15 by Judge Otis D. Wright, II: The Court GRANTS Chosen's Motion for Default Judgment and awards $15,330.00 in statutory damages, $1,519.80 in attorneys' fees, and $572.00 in costs . (lc) Modified on 1/29/2025 (lc).

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United States District Court
Central District of California

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Plaintiff,

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Case ? 2:24-cv-06706-ODW (JPRx)

CHOSEN FIGURE LLC,

ORDER GRANTING MOTION FOR

v.
KERWIN FROST ENTERTAINMENT
LLC,

DEFAULT JUDGMENT [15]

Defendant.

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I.

INTRODUCTION

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Plaintiff Chosen Figure LLC (“Chosen”) brings this suit against Defendant

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Kerwin Frost Entertainment LLC (“Kerwin”) for copyright infringement. (Compl.

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¶¶ 48–57, ECF No. 1.) Chosen moves for entry of default judgment against Kerwin.

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(Mot. Default J., ECF No. 15; Mem. P. & A. ISO Mot. Default J. (“Motion” or “Mot.”),

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ECF No. 15-3.) For the reasons below, the Court GRANTS Chosen’s Motion.1

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II.

BACKGROUND

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On October 31, 2021, Robert Kamau published four photographs of Bella Hadid,

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a model, wearing a lime green outfit with blue earmuffs (the “Photographs”). (Compl.

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After considering the papers filed in connection with the Motion, the Court deemed the matter
appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15.

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¶¶ 2, 14, Ex. 1 (“Photographs”), ECF No. 1-1.) In creating the Photographs, Kamau

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selected the subject matter, timing, lighting, angle, perspective, depth, lens, and camera

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equipment used to capture the images. (Id. ¶ 15.) At some point thereafter, all rights to

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the Photographs were transferred to Chosen. (Id. ¶ 16.) On December 22, 2021, the

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Photographs were registered with the United States Copyright Office (the “Copyright

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Office”). (Id. ¶ 17; Decl. Robert Kamau ISO Mot. (“Kamau Decl.”) ¶ 10, Ex. 1

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(“Certificate of Registration”), ECF No. 15-2.)

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Kerwin is a media company that owns a portfolio of digital marketing platforms.

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(Compl. ¶ 22.) It owns and operates the social media account @KerwinFrost on

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Instragram.com (the “Account”). (Id. ¶¶ 3, 19–20.) Kerwin does not have adequate

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internal policies to verify copyright ownership before using content. (Id. ¶¶ 23–24.)

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On or about November 2, 2021, Kerwin posted the Photographs on the Account without

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Chosen’s consent. (Id. ¶¶ 26–27, 29, 31, Ex. 2 (“Instagram Posts”), ECF No. 1-2.)

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On July 29, 2023, Chosen learned that Kerwin posted the Photographs. (Id. ¶ 28.)

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Nearly a year later, on June 18, 2024, Chosen’s counsel sent a letter to Kerwin to

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address its concerns of Kerwin’s purported copyright infringement. (Id. ¶ 44.) Kerwin

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did not respond to the letter and, as of the date of the Complaint, continued to use the

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Photographs. (Id. ¶¶ 45–46.) The Photographs have since been removed. (Kamau

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Decl. ¶ 13.) Kerwin’s use of the Photographs increased traffic to the Account. (Compl.

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¶ 39.) Many people viewed the Photographs posted on Kerwin’s Account, and Kerwin

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financially benefitted from its use of the Photographs. (Id. ¶¶ 38–40.) Kerwin’s use of

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the Photographs also harmed the market for the Photographs. (Id. ¶ 42.)

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Chosen brings this suit against Kerwin, asserting one cause of action for willful

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copyright infringement in violation of the Copyright Act. (Id. ¶¶ 48–57.) In its

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Complaint, Chosen seeks a permanent injunction, damages, attorneys’ fees, and costs.

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(Id. Prayer for Relief.) In the present Motion, however, Chosen seeks only damages,

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attorneys’ fees, and costs. (Mot. 1, 11–14.) Chosen served the Complaint on Kerwin

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on September 9, 2024. (Proof Service, ECF No. 11.) Kerwin failed to respond to the

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Complaint within the time required by Federal Rule of Civil Procedure (“Rule” or

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“Rules”) 12(a). On Chosen’s request, the Clerk entered default against Kerwin on

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October 2, 2024. (Default by Clerk, ECF No. 13.) Chosen now moves for entry of

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default judgment. (Mot.)
III.

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LEGAL STANDARD

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Rule 55(b) authorizes a district court to grant a default judgment after the Clerk

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enters a default under Rule 55(a). Before a court can enter a default judgment against

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a defendant, the plaintiff must satisfy the procedural requirements set forth in

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Rules 54(c) and 55, and Central District Local Rules (“Local Rule” or “Local

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Rules”) 55-1 and 55-2.

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“defendant’s default does not automatically entitle the plaintiff to a court-ordered

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judgment.” PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal.

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2002). Instead, “[t]he district court’s decision whether to enter a default judgment is a

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discretionary one.” Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980).

Even if these procedural requirements are satisfied, a

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Generally, after the Clerk enters a default, the defendant’s liability is conclusively

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established, and the well-pleaded factual allegations in the plaintiff’s complaint “will

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be taken as true” except those pertaining to the amount of damages. TeleVideo Sys.,

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Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987) (per curiam) (quoting Geddes

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v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)). The court need not make

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detailed findings of fact in the event of default, except as to damages. See Adriana Int’l

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Corp. v. Thoeren, 913 F.2d 1406, 1414 (9th Cir. 1990).
IV.

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DISCUSSION

Chosen satisfies the procedural requirements for default judgment and establishes

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that entry of default judgment against Kerwin is appropriate.

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A.

Procedural Requirements

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Local Rule 55-1 requires that the movant establish: (1) when and against which

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party default was entered; (2) the pleading as to which default was entered; (3) whether

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the defaulting party is a minor or incompetent person; (4) that the Servicemembers Civil

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Relief Act does not apply; and (5) that the defaulting party was properly served with

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notice, if required under Rule 55(b)(2). Rule 55(b)(2) requires written notice on the

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defaulting party if that party “has appeared personally or by a representative.”

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Chosen meets these requirements. On October 2, 2024, the Clerk entered default

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against Kerwin as to Chosen’s Complaint. (Default by Clerk; Decl. Jacqueline Mandel,

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Esq. ISO. Mot. (“Mandel Decl.”) ¶¶ 3a–b, ECF No. 15-1.) Chosen asserts that Kerwin

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is not a minor or incompetent person, and the Servicemembers Civil Relief Act does

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not apply. (Mandel Decl. ¶¶ 3c–d.) Finally, while not required because Kerwin has not

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“appeared personally or by a representative,” Fed. R. Civ. P. 55(b)(2), Chosen served

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Kerwin with written notice of the Motion, (Mandel Decl. ¶ 3e, Ex. 1). Thus, Chosen

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satisfies the procedural requirements for entry of default judgment.

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B.

Eitel Factors

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In evaluating whether entry of default judgment is warranted, courts consider the

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“Eitel factors”: (1) the possibility of prejudice to plaintiff; (2) the merits of plaintiff’s

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substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake;

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(5) the possibility of a material factual dispute; (6) whether the default was due to

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excusable neglect; and (7) the strong policy favoring decisions on the merits. See Eitel

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v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986). “Of all the Eitel factors, courts

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often consider the second and third factors to be the most important.” Viet. Reform

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Party v. Viet Tan-Viet. Reform Party, 416 F. Supp. 3d 948, 962 (N.D. Cal. 2019)

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(internal quotation marks omitted). Accordingly, the Court considers these two factors

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first.

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Second & Third Eitel Factors

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The second and third Eitel factors require a plaintiff to “state a claim on which

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the [plaintiff] may recover.” PepsiCo, 238 F. Supp. 2d at 1175 (alteration in original).

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Although well-pleaded allegations are taken as true, “claims which are legally

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insufficient[] are not established by default.” Cripps v. Life Ins. Co. of N. Am., 980 F.2d

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1261, 1267 (9th Cir. 1992).

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“To prove copyright infringement, a plaintiff must demonstrate (1) ownership of

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the allegedly infringed work and (2) copying of the protected elements of the work by

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the defendant.” Unicolors, Inc. v. Urb. Outfitters, Inc., 853 F.3d 980, 984 (9th Cir.

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2017) (quoting Pasillas v. McDonald’s Corp., 927 F.2d 440, 442 (9th Cir. 1991)).

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First, a “copyright registration is ‘prima facie evidence of the validity of the

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copyright.’” United Fabrics Int’l, Inc. v. C&J Wear, Inc., 630 F.3d 1255, 1257 (9th Cir.

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2011) (quoting 17 U.S.C. § 410(c)). Chosen is the sole owner of the exclusive rights to

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the Photographs, which were registered with the Copyright Office on December 22,

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2021, Registration Number VA 2-280-108. (Compl. ¶¶ 2, 10–18.) Chosen also submits

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a certificate of registration for its copyrights of the Photograph along with its Motion.

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(Kamau Decl. ¶ 6; Certificate of Registration.) Chosen thus sufficiently alleges that it

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is the exclusive owner of the rights of a valid copyright.

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Second, Chosen can establish copying of constituent elements by showing

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(1) Kerwin had access to the Photographs and (2) the Photographs and the images that

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appear on Kerwin’s Account are “substantially similar.” See Folkens v. Wyland

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Worldwide, LLC, 882 F.3d 768, 774 (9th Cir. 2018). Kamau published the Photographs

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on October 31, 2021.

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Photographs and screen captures of Kerwin’s Account displaying identical images.

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(See Photographs; Instagram Posts.) Thus, taking these allegations as true, Chosen

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sufficiently alleges that Kerwin copied the constituent elements of the Photographs.

(Compl. ¶ 14.)

Chosen provides images of its registered

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It is of no moment that the Photographs were registered after they were published

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and after Kerwin posted them to the Account. The Copyright Act “mandates that, in

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order to recover statutory damages, the copyrighted work must have been registered

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prior to commencement of the infringement, unless the registration is made within

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three months after first publication of the work.” Derek Andrew, Inc. v. Poof Apparel

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Corp., 528 F.3d 696, 699 (9th Cir. 2008) (citing 17 U.S.C. § 412(2)). Here, Chosen

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registered the Photographs within three months after first publishing them. (See Compl.

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¶ 14 (published on October 31, 2021), ¶ 17 (registered on December 22, 2021).)

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Remaining Eitel Factors

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On balance, the remaining Eitel factors also weigh in favor of entering default

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judgment against Kerwin. To begin, the first and fourth Eitel factors—possibility of

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prejudice and sum of money at stake—favor default judgment. Chosen would suffer

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prejudice absent entry of default judgment because it would have no recourse against

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Kerwin, and no remedy for the injuries sustained from Kerwin’s misconduct. Further,

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as discussed below in the damages analysis, the sum of money Chosen seeks is

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expressly authorized by statute.

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The fifth and sixth factors—possibility of dispute and excusable neglect—also

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weigh in favor of default judgment. Chosen’s well-pleaded allegations are accepted as

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true on default, and Kerwin may not now “challenge the accuracy of the allegations in

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the complaint.” Landstar Ranger, Inc. v. Parth Enters., Inc., 725 F. Supp. 2d 916, 922

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(C.D. Cal. 2010). Chosen supports its claim with ample evidence and the Court’s

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review of the record reveals “no factual disputes . . . that preclude the entry of default

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judgment.” Id. Further, Chosen properly served Kerwin, and thus Kerwin was on notice

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and failed to respond; no facts indicate the possibility of excusable neglect.

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Finally, the seventh factor—policy favoring decisions on the merits—always

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weighs in a defaulting defendant’s favor. But because Kerwin’s failure to appear in this

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action prevents the Court from reaching a decision on the merits, this factor does not

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prevent the Court from entering judgment by default. See Duralar Techs. LLC v. Plasma

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Coating Techs., Inc., 848 F. App’x 252, 255 (9th Cir. 2021) (affirming entry of default

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judgment where all factors except the seventh weighed in plaintiff’s favor).
In sum, the Eitel factors weigh in favor of entering default judgment against

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Kerwin on Chosen’s sole cause of action for federal copyright infringement.

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C.

Requested Relief

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“A default judgment must not differ in kind from, or exceed in amount, what is

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demanded in the pleadings.” Fed. R. Civ. P. 54(c). Here, Chosen seeks statutory

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damages, attorneys’ fees, and costs. (Mot. 1, 11–14.) The relief Chosen seeks is

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consistent with the relief requested in the Complaint and is therefore permissible. (See

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Compl, Prayer for Relief ¶¶ b, d.) However, for the following reasons, the Court awards

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Chosen some, but not all, of the relief it requests.

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Statutory Damages

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The Copyright Act allows for statutory damages in a sum not less than $750 or

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more than $30,000 for all infringements with respect to any one work. 17 U.S.C.

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§ 504(c)(1). Furthermore, “[i]n a case where the copyright owner sustains the burden

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of 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). “The court has wide discretion in determining the amount

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of statutory damages to be awarded, constrained only by the specified maxima and

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minima.” Warner Bros. Ent. Inc. v. Caridi, 346 F. Supp. 2d 1068, 1073 (C.D. Cal. 2004)

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(quoting Harris v. Emus Recs. Corp., 734 F.2d 1329, 1335 (9th Cir. 1984)). “In

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measuring the damages, the court is to be guided by ‘what is just in the particular case,

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considering the nature of the copyright, the circumstances of the infringement and the

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like.’” Id. at 1073–74 (quoting Peer Int’l Corp. v. Pausa Recs., Inc., 909 F.2d 1332,

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1336 (9th Cir. 1990)). Allegations of willful infringement are deemed true on default.

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See, e.g., Dorgan v. Our Generation Music, LLC, No. 2:23-cv-08075-SVW (AGRx),

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2024 WL 4002865, at *3 (C.D. Cal. July 1, 2024); Stockfood Am., Inc. v. Caballero,

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No. 5:20-cv-00478-JGB (SPx), 2020 WL 6747380, at *4 (C.D. Cal. Oct. 1, 2020); see

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also Derek Andrew, 528 F.3d at 702 (holding that “all factual allegations in the

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complaint are deemed true, including the allegation of . . . willful infringement” in

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Lanham Act case).

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Chosen seeks statutory damages for Kerwin’s willful infringement of Chosen’s

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Photographs. (Mot. 9; Compl., Prayer for Relief ¶ b); see Michael Grecco Prods., Inc.

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v. TrekMovie.com, 677 F. Supp. 3d 1104, 1109 (C.D. Cal. 2023) (“At any time before

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final judgment, the copyright holder may elect to recover an award based on statutory

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damages instead of actual damages” (citing 17 U.S.C. § 504(c)).).

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Kerwin lacks

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internal policies “to verify copyright ownership before content use,” which “indicat[es]

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a willful, recurring disregard for copyright compliance.” (Compl. ¶ 24.) Further,

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Kerwin’s “failure to adopt or effectively enforce internal copyright policies, if any,

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indicates de facto willful infringement.” (Id. ¶ 25.) Kerwin “willfully and volitionally

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posted to the Account” and “was aware of facts or circumstances from which the

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determination regarding the Infringement was apparent.” (Id. ¶¶ 33–34.) On June 18,

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2024, Chosen’s counsel sent Kerwin a letter “seeking to address the complaints . . .

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concerning [Kewin’s] infringement,” but Kerwin failed to respond. (Id. ¶¶ 44–45.) As

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of August 8, 2024, the date of the Complaint, Kerwin continued its infringement.2 (Id.

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¶ 46.) Thus, Chosen establishes that Kerwin’s infringing conduct was willful and an

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enhanced award of statutory damages is available.

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Chosen seeks $51,100 in statutory damages. (Mot. 9.) Chosen arrives at this

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figure by multiplying the $2,555 that “would have been the licensing fee per image” by

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five for Kerwin’s willful infringement of each Photograph. (Id.) To support the

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$2,555 licensing fee, Chosen submits “a Getty estimate for a similar photograph that

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would be licensed . . . for the same manner of usage” as Kerwin used the Photographs.

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(Kamau Decl. ¶ 24, Ex. 2.) Chosen contends that this amount is “reasonable, relatively

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modest, and proportionate to the harm caused by [Kerwin], and is also warranted to

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deter future infringements by [Kerwin], as well as other would-be infringers.” (Mot. 9.)

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The $51,100 in statutory damages that Chosen requests is excessive under the

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circumstances of this case. See Peer Int’l Corp., 909 F.2d at 1336 (considering “what

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is just in the particular case”).

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First, Chosen’s assertion that the Court should rely on a Getty estimate for a

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“similar photograph” (the “Other Photograph”) to determine the licensing fee of the

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Photographs is conclusory. While the Other Photograph appears to also be a photograph

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of Bella Hadid, Chosen provides no evidence to support that the Photographs and the

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As of October 10, 2024. the date of Kamau’s declaration in support of the Motion, the Instagram
posts containing the Photographs on the Account were removed. (Kamau Decl. ¶ 13.)

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Other Photograph are similar. Nor does Chosen explain how a “Getty estimate” is

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calculated and whether such calculations would be similar for the Photographs and the

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Other Photograph. Without more, the Court cannot conclude that the requested $2,555

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licensing fee per Photograph is appropriate. See Order Re Motion for Default Judgment,

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Chosen Figure LLC v. Bobby24, No. 2:23-cv-04198-DMG (SSCx), at 5 (C.D. Cal.

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Nov. 16, 2023), ECF No. 23 (questioning relevance of Getty estimation of similar

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image to determine licensing fee of the infringed photographs). Accordingly, the Court

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will award half of the requested rate—$1,277.50—to account for the licensing fee of

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each Photograph. See id. (awarding half of requested amount).

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Second, Chosen argues that a multiplier of five is appropriate to account for

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Kerwin’s willful infringement. Chosen states that a multiplier should be used as a

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“deterrent” to Kerwin and others who would infringe copyrights but does not explain

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how it arrived at five as the multiplier.

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infringement was willful. But there are also circumstances of Kerwin’s infringement

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that counsel in favor of a lower multiplier. Kerwin posted the Photographs on its

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Account before the Photographs were registered with the Copyright Office. And

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Kerwin deleted these posts as early as two months and as late as four months after

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Chosen notified it of the infringement. (See Compl. ¶ 44 (noting that Chosen’s counsel

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sent Kerwin a letter regarding the infringement on June 18, 2024), ¶ 46 (noting in its

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Complaint, dated August 8, 2024, that Kerwin had not ceased infringing on the

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Photographs’ copyrights); Kamau Decl. ¶ 13 (declaring that, as of October 10, 2024,

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Kerwin had deleted the Instagram posts of the Photographs).) Accordingly, the Court

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finds a multiplier of three to be appropriate here. See, e.g., Michael Grecco Prods.,

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677 F. Supp. 3d at 1110 (awarding multiplier of three to the licensing rate instead of ten

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that plaintiff requested).

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(Kamau Decl. ¶ 25.)

Here, Kerwin’s

Based on the above, Chosen has shown it is entitled to a statutory damages award

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of $15,3303 for Kerwin’s willful infringements of the Photographs.

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2.

Attorneys’ Fees

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Chosen seeks $3,644 in attorneys’ fees under Local Rule 55-3. (Mot. 14; Compl.,

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Prayer for Relief ¶ d.) As a general matter, district courts only award attorneys’ fees if

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an independent basis exists for the award. See Alyeska Pipeline Serv. Co. v. Wilderness

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Soc’y, 421 U.S. 240, 257–59 (1975). A party who has violated the Copyright Act may

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be liable for attorneys’ fees and costs under 17 U.S.C. § 505.

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When the judgment amount is between $10,000.01 and $50,000 and “a

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promissory note, contract or applicable statute provides for the recovery of reasonable

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attorneys’ fees,” Local Rule 55-3 provides that the attorneys’ fees shall be calculated”

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as “$1200 plus 6% of the amount over $10,000.” C.D. Cal. L.R. 55-3. This formula

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“shall be applied to the amount of the judgment exclusive of costs.” Id. Chosen is

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entitled to recover $15,330 in principal damages, yielding a total of $1,519.80 in

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attorneys’ fees.

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3.

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Chosen also seeks $572 in costs. (Mot. 14; Mandel Decl. ¶ 5.) In a declaration

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submitted in support of its Motion, Chosen’s counsel explains that this request consists

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of $402 for the Complaint filing fee and $170 for process server fee. (Mandel Decl.

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¶ 5–7.)4 Chosen provides adequate support to show its incurrence of these costs.

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(Mandel ¶¶ 6–7, Ex. 1.) Therefore, the Court awards Chosen $572 in costs.

Costs

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$15,300 = $1,277.50 (fee per Photograph) x 4 (number of Photographs) x 3 (willful infringement
multiplier).
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In its Motion, Chosen requests $572 in costs consisting of a $402 filing fee and $85 process server
fee. (Mot. 14.) As Chosen provides invoices for $170 in process server fees, (Mandel Decl. Ex. 1),
the Court determines that the $85 identified in the Motion is a typographical error.

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V.

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CONCLUSION

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For the reasons discussed above, the Court GRANTS Chosen’s Motion for

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Default Judgment and awards $15,330 in statutory damages, $1,519.80 in attorneys’

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fees, and $572 in costs. (ECF No. 15.)

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IT IS SO ORDERED.

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January 29, 2025

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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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