Folkmanis, Inc. v. Uptown Toys LLC

Filing 21

ORDER Re Supplemental Briefing and/or Evidence. Signed by Judge Edward M. Chen on 8/6/2018. (emcsec, COURT STAFF) (Filed on 8/6/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FOLKMANIS, INC.,
Plaintiff,

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UPTOWN TOYS LLC,

Docket No. 18

Defendant.

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United States District Court
Northern District of California

ORDER RE SUPPLEMENTAL
BRIEFING AND/OR EVIDENCE

v.

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Case No. 18-cv-00955-EMC

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Plaintiff Folkmanis, Inc. initiated this copyright infringement action against Defendant

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Uptown Toys LLC in February 2018. After Uptown failed to respond to the complaint, Folkmanis

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sought and obtained an entry of default against Uptown. See Docket No. 14 (notice). Now

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pending before the Court is Folkmanis’s motion for default judgment.

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Having reviewed Folkmanis’s motion and accompanying submissions, the Court hereby
orders to provide supplemental briefing and/or evidence as follows.
1.

Folkmanis shall provide physical copies of the puppets at issue – both its own

puppets and the allegedly infringing puppets.
2.

For each of its puppets, Folkmanis shall identify with specificity each protectable

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element that was allegedly copied. To the extent Folkmanis has referred to pattern pieces and

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“sewing and other techniques,” Mot. at 8; see also Kollias Decl. ¶¶ 2(c)-(d), 9, Folkmanis must

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provide additional specificity. Examples would be especially helpful.

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3.

The value of the copyright is one factor that is considered when courts consider

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statutory damages for copyright infringement. See Sanrio Co. v. J.I.K. Accessories, No. C-09-

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0440 EMC, 2012 U.S. Dist. LEXIS 55280, at *17-18 (N.D. Cal. Apr. 19, 2012) (listing factors);

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see also Jackson v. Sturkie, 255 F. Supp. 2d 1096, 1102 (N.D. Cal. 2003) (stating that, “[i]n

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determining the appropriate amount of statutory damages, the court should be guided by what is

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just in the particular case, considering the nature of the copyright, the circumstances of the

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infringement, and the like”) (internal quotation marks omitted). While Folkmanis has provided

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some information regarding the value of the copyrights, see Kollias Decl. ¶ 4 (referring to revenue

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earned by Folkmanis from the sale of its puppets), that information is not sufficient. For each of

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its puppets, Folkmanis shall provide information regarding the number of puppets it has sold (1)

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during the alleged infringement period and (2) for two years before the alleged infringement

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period. Folkmanis shall also provide information regarding the profits (not revenues) it has earned

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for each of the puppets at issue (1) during the alleged infringement period and (2) for two years

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before the alleged infringement period.1 This information may be filed under seal.
4.

United States District Court
Northern District of California

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Folkmanis asserts that it cost approximately $10,000 to develop each puppet at

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issue. See Kollias Decl. ¶ 4. Because the Kollias declaration is conclusory, Folkmanis shall

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provide additional information as to how it arrived at this figure.
5.

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Folkmanis states: “From the little evidence that Plaintiff has been able to gather

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concerning Defendant’s business, its profits from these infringements are not likely large.” Mot.

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at 10; see also Brucker Decl. ¶ 12. Folkmanis shall provide what information it has about

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Uptown’s alleged infringement.
6.

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Folkmanis has referred to successful enforcement of its copyrights “against

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numerous infringers.” Kollias Decl. ¶ 12. Folkmanis shall provide information as to whether any

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of these prior situations involved the puppets at issue here and, if so, how those situations were

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resolved.

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5.

Folkmanis represents that it has incurred over $30,000 in attorney’s fees.

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Folkmanis shall provide information about its lodestar – including the number of hours expended

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by its attorneys on this lawsuit. It would be helpful if the hours were categorized – e.g., how many

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Based on the papers submitted, it appears that the alleged infringement began after November
15, 2016. See Brucker Decl. ¶ 8. It is not clear whether the alleged infringement is still ongoing.
See Mot. at 8 (asserting that, after Uptown was served with the complaint, it “continued to sell at
least two of The Infringing Puppets: the owl puppet and the zebra puppet, including in April
2018”); Kollias Decl. ¶ 11 (testifying that she purchased via Amazon the allegedly infringing
zebra and owl puppets).
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hours were spent on investigation, on drafting the complaint, on settlement discussions, etc.2
6.

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Folkmanis shall provide information as to whether Uptown is continuing its alleged

infringement of the puppets at issue.
The supplemental briefing and/or evidence shall be filed within one week of the date of

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this order. Folkmanis shall immediately serve a copy of this order on Uptown and file a proof of

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service reflecting compliance.

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IT IS SO ORDERED.

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Dated: August 6, 2018

United States District Court
Northern District of California

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______________________________________
EDWARD M. CHEN
United States District Judge

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Folkmanis is advised that, as a general matter, it should not provide any specifics about
settlement discussions to the Court. See Brucker Decl. ¶ 9 (testifying that “negotiations failed
when Uptown refused to pay more than $5,000 toward Folkmanis’ legal fees as a condition of
settlement”).
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