Tylor et al v. Rhythm of Life Cosmetics, Inc. et al

Filing 15

MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION TO GRANT PLAINTIFFS' MOTION FOR ENTRY OF DEFAULT JUDGMENT AS TO DEFENDANT RHYTHM OF LIFE COSMETICS, INC. dba MAUI TROPICAL SOAPS re 12 . Signed by JUDGE KEVIN S.C. CHANG on 01/06/2014. (eps )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
VINCENT KHOURY TYLOR
and VINCENT SCOTT TYLOR
Plaintiffs,
vs.
RHYTHM OF LIFE COSMETICS,
INC., a Hawaii Corporation, dba MAUI
TROPICAL SOAPS; RICHARD D.
STILLMAN; JOHN DOES 1-10; JANE
DOES 1-10; DOE CORPORATIONS
1-10; DOE PARTNERSHIPS 1-10; and
DOE ASSOCIATIONS 1-10,
Defendants.

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CIVIL NO. CV13-00280 DKW-KSC
(Copyright Infringement)
FINDINGS AND
RECOMMENDATION TO
GRANT PLAINTIFFS’ MOTION
FOR ENTRY OF DEFAULT
JUDGMENT AS TO DEFENDANT
RHYTHM OF LIFE COSMETICS,
INC. dba MAUI TROPICAL SOAPS

MAGISTRATE JUDGE’S FINDINGS AND
RECOMMENDATION TO GRANT PLAINTIFFS’ MOTION
FOR ENTRY OF DEFAULT JUDGMENT AS TO DEFENDANT
RHYTHM OF LIFE COSMETICS, INC. dba MAUI TROPICAL SOAPS
Plaintiffs VINCENT KHOURY TYLOR and VINCENT SCOTT
TYLOR’s Motion for Entry of Default Judgment as to Defendant RHYTHM OF
LIFE COSMETICS, INC., a Hawaii Corporation, dba MAUI TROPICAL SOAPS
filed herein on November 8, 2013, [Doc. #12] having come on for hearing before the
Court, the Honorable Kevin S.C. Chang, Magistrate Judge presiding, with J. Stephen
Street and Dane Anderson appearing for the plaintiffs and there being no appearance
and no written submission by or on behalf of the Defendant RHYTHM OF LIFE

COSMETICS, INC., a Hawaii Corporation, dba MAUI TROPICAL SOAPS, the
Court, after full consideration of Plaintiffs’ motion and the entire record herein,
makes the following Findings and Recommendation:
FINDINGS OF FACT
1. This is an action for preliminary and permanent
injunctive relief and damages against Defendant RHYTHM
OF LIFE COSMETICS, INC. dba MAUI TROPICAL SOAPS
(hereinafter “Defendant Rhythm of Life Cosmetics,
Inc.”) for copyright infringements in willful
violation of the United States Copyright Act, 17
U.S.C. §§ 101 et seq. and for violations of the
Digital Millennium Copyright Act 17 U.S.C. §1202.
[Doc. # 1 ¶ 6].
2. This Court has jurisdiction over the subject matter of
this action under 28 U.S.C. §§ 1331 and 1338(a).
Venue is proper in this district under 28 U.S.C. §§
1391(b) and (c) and 28 U.S.C. § 1400(a).

[Doc. # 1 ¶¶

7-8].
3. Plaintiffs filed their Complaint herein on May 31,
2013.

[Doc. # 1].

4. Defendant Rhythm of Life Cosmetics, Inc. was served
through its registered agent, Michael L. Lam, Esq., on
June 25, 2013, and the Proof of Service was filed as
2

Doc. # 4 in this action.

Based upon the service date

of June 25, 2013, Defendant Rhythm of Life Cosmetics,
Inc.’s Answer to the Complaint was due on July 16,
2013.
5. The Clerk of the Court entered default as to Defendant
Rhythm of Life Cosmetics, Inc. on July 19, 2013.
[Doc. # 6].
6. Defendant Rhythm of Life Cosmetics, Inc. is doing
business in the State of Hawaii under the business
name and brand name MAUI TROPICAL SOAPS through a
commercial web page on Facebook.com, at
http://www.facebook.com/MauiSoaps; through a
commercial web blog on Wordpress.com, at
http://mauisoap.wordpress.com; and, through a
commercial website at
http://www.mauitropicalsoaps.com.

[Doc. # 1 ¶ 9].

7. Defendant Rhythm of Life Cosmetics, Inc. manages and
controls its commercial web page on Facebook.com and
its commercial web blog on Wordpress.com to advertise
and promote its MAUI TROPICAL SOAPS business and brand
name and commercial website at
http://www.mauitropicalsoaps.com; to feature its
cosmetic products and offers found on its commercial

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website; to respond to product inquires by
users/readers; and, to encourage users/readers to
navigate to its commercial website to view product
prices and offers and to make purchases by clicking on
one of the many posted hyperlinks found throughout its
web page and web blog for users/readers to be routed
automatically to Defendant Rhythm of Life Cosmetics,
Inc.’s commercial website.

[Doc. # 1 ¶¶ 10-11].

8. Nineteen (19) of the photographic works, image nos.:
“O-06 Hanauma Bay Wide”; “K-06-B Wailua Falls
Rainbow”; “O-01 Waikiki-Pink boat ORIG.”; “A-14
Tropical Lagoon”; “K-24-B Kealia Beach”; “B-07 Akaka
Falls Hor”; “B-01-A Rainbow Falls”; “M-07
Windsurfers”; “A-29 Tropical Oasis”; “O-24 Makapuu”;
“A-28 Emerald Waters”; “K-38 Taro Fields of Hanalei”;
“K-12-B Lumahai Beach Low”; “B-01-B Rainbow Falls”;
“K-27 NaPali Coast”; “A-20 Surfer at Twilight”; “B-18
Green Beach”; “A-34 Island Falls”; and, “K-20 Waimea
Canyon” at issue in this case were created by
photographer Plaintiff VINCENT KHOURY TYLOR, who is
the owner of the copyrights for those photographic
works.

The copyrights for Plaintiff VINCENT KHOURY

TYLOR’s photographic works at issue were registered

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with the United States Copyright Office as 1) VA 1696-555, effective December 17, 2009, and supplemented
by VA 1-432-741; 2) VA 1-696-552, effective December
17, 2009, and supplemented by VA 1-432-820; and, 3) VA
1-759-562, effective January 29, 2011.

[Doc #1 ¶¶ 13-

14 & Doc. #1-1].
9. Four (4) of the photographic works, image nos.:
“Princeville 01”; “Anini 02”; “Hanama Bay”; and,
“Hanauma Bay Overlook Original” at issue in this case
were created by photographer Plaintiff VINCENT SCOTT
TYLOR, who is the owner of the copyrights for those
photographic works.

The copyrights for three (3) of

four (4) of Plaintiff VINCENT SCOTT TYLOR’s
photographic works at issue, specifically “Princeville
01”; “Anini 02”; and, “Hanama Bay”, were registered
with the United States Copyright Office as VA 1-761524, effective February 8, 2011.

The registration of

Plaintiff VINCENT SCOTT TYLOR’s “Hanauma Bay Overlook
Original” was pending certification by the United
States Copyright Office as of the filing of the
Complaint.

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[Doc. #1 ¶¶ 15-16 & Doc. #1-2].

10. Plaintiffs incurred substantial time and expense in creating the photographic
works at issue, and Plaintiffs license the photographic works at issue for
commercial and other uses. [Doc. # 1 ¶ 19].
11. In late 2012, Plaintiff VINCENT KHOURY TYLOR learned
that Defendant Rhythm of Life Cosmetics, Inc. used
fifteen (15) of Plaintiff VINCENT KHOURY TYLOR’s
photographic works, specifically images “O-06 Hanauma
Bay Wide”; “K-06-B Wailua Falls Rainbow”; “O-01
Waikiki-Pink boat ORIG.”; “A-14 Tropical Lagoon”; “K24-B Kealia Beach”; “B-07 Akaka Falls Hor”; “B-01-A
Rainbow Falls”; “M-07 Windsurfers”; “A-29 Tropical
Oasis”; “O-24 Makapuu”;

“A-28 Emerald Waters”; “K-38

Taro Fields of Hanalei”; “K-12-B Lumahai Beach Low”;
“B-01-B Rainbow Falls”; and, “K-27 NaPali Coast” on
its commercial Facebook.com web page and commercial
Wordpress.com web blog a total of thirty-four (34)
times without obtaining a license or consent from
Plaintiff VINCENT KHOURY TYLOR; thus violating
Plaintiff VINCENT KHOURY TYLOR’s exclusive right to
reproduce, adapt, display, distribute, and/or create
derivative works under 17 U.S.C. § 100 et al.
#1 ¶ 20 & Doc. #1-3].

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[Doc.

12. In late 2012, Plaintiff VINCENT SCOTT TYLOR learned
that Defendant Rhythm of Life Cosmetics, Inc. used
three (3) of Plaintiff VINCENT SCOTT TYLOR’s
photographic works, specifically images “Princeville
01”; “Anini 02”; and, “Hanama Bay” on its commercial
Facebook.com web page and commercial Wordpress.com
web blog a total of six (6) times without obtaining
license or consent from Plaintiff VINCENT SCOTT
TYLOR; thus violating Plaintiff VINCENT SCOTT TYLOR’s
exclusive right to reproduce, adapt, display,
distribute, and/or create derivative works under 17
U.S.C. § 100 et al. [Doc. #1 ¶ 21 & Doc. #1-4].
13. Despite notice of the infringements in November of
2012, communications with Defendant Rhythm of Life
Cosmetics, Inc. discussing the nature and duration of
the copyright infringements and Plaintiffs’ demand
that Defendant Rhythm of Life Cosmetics, Inc. cease
and desist from using any of Plaintiffs’ copyrighted
works, Defendant Rhythm of Life Cosmetics, Inc.
continued to use seven (7) of the eighteen (18)
photographic works at issue in the same manner on its
commercial Facebook.com web page and Wordpress.com
web blog.

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14. In addition to Defendant Rhythm of Life Cosmetics,
Inc.’s continued use of seven (7) of the photographic
works after Plaintiffs’ request to cease and desist,
Plaintiffs learned in May of 2013, that Defendant
Rhythm of Life Cosmetics, Inc. was using four (4)
additional photographic works of Plaintiff VINCENT
KHOURY TYLOR and one (1) additional photographic work
of Plaintiff VINCENT SCOTT TYLOR on its commercial
Facebook.com web page.

The infringing uses of five

(5) additional photographic works of Plaintiffs,
which began in December of 2012, after Plaintiffs’
cease and desist demand for the initial eighteen (18)
photographic works, consist of a total of twelve (12)
additional uses of the five (5) additional
photographic works, specifically, Plaintiff VINCENT
KHOURY TYLOR’s “B-18 Green Beach”; “A-34 Island
Falls”; “K-20 Waimea Canyon”; “A-20 Surfer at
Twilight”; and, Plaintiff VINCENT SCOTT TYLOR’s
“Hanauma Bay Lookout Original” without obtaining a
license or consent from Plaintiffs; thus violating
Plaintiffs’ exclusive right to reproduce, adapt,
display, distribute, and/or create derivative works

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under 17 U.S.C. § 100 et al.

[Doc. #1 ¶ 25; Doc. #1-

3; Doc. #1-4].
15. Defendant Rhythm of Life Cosmetics, Inc. continues
to use Plaintiff VINCENT KHOURY TYLOR’s “B-18 Green
Beach”; “A-34 Island Falls”; “K-20 Waimea Canyon”;
and, Plaintiff VINCENT SCOTT TYLOR’s “Hanauma Bay
Lookout Original.”

[Doc. #1 ¶¶ 20 & 25 & Doc. #12-

2].
16. At least seventeen (17) of the nineteen (19) total
photographic works at issue by Plaintiff VINCENT
KHOURY TYLOR, specifically, image nos.: “K-06-B
Wailua Falls Rainbow”; “A-14 Tropical Lagoon”; “K-24B Kealia Beach”; “B-07 Akaka Falls Hor”; “B-01-A
Rainbow Falls”; “M-07 Windsurfers”; “A-29 Tropical
Oasis”; “O-24 Makapuu”; “A-28 Emerald Waters”; “K-38
Taro Fields of Hanalei”; “K-12-B Lumahai Beach Low”;
“B-01-B Rainbow Falls”; “K-27 NaPali Coast”; “A-20
Surfer at Twilight”; “B-18 Green Beach”; “A-34 Island
Falls”; and, “K-20 Waimea Canyon” where they are
legitimately available, bear Plaintiff VINCENT KHOURY
TYLOR’s copyright management information in the form
of a “Vincent K. Tylor” signature at the bottom
corner of each photographic work.

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Defendant Rhythm

of Life Cosmetics, Inc. intentionally removed or
altered Plaintiff VINCENT KHOURY TYLOR’s copyright
management information in at least seventeen (17) of
his photographic works at issue for Defendant Rhythm
of Life Cosmetics, Inc.’s uses of those photographic
works without the authority of Plaintiff VINCENT
KHOURY TYLOR or the law.

Plaintiff VINCENT KHOURY

TYLOR was injured in his ability to license those photographic works at issue
because Defendant Rhythm of Life Cosmetics, Inc.’s
commercial Facebook.com web page and commercial
Wordpress.com web blog contained copies of seventeen
(17) photographic works at issue, in high resolution,
with the copyright management information removed.
Plaintiff VINCENT KHOURY TYLOR’s copyright management
information is readily ascertainable by performing a
search of his photographic works on the Internet.
One photographic work, “K-27 NaPali Coast,” used by
Defendant Rhythm of Life Cosmetics, Inc. on its
commercial Facebook.com web page was not digitally
cropped and still contained the copyright management
information, demonstrating willful infringement and a
disregard for Plaintiffs’ copyright notices.
1 ¶¶ 26-27 & Doc. # 1-3].
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[Doc. #

17. Plaintiffs have held all rights, title and interest
in the copyrights to the photographic works at issue
during the entire period of Defendant Rhythm of Life
Cosmetics, Inc.’s use, the use of which has not been
licensed to Defendant Rhythm of Life Cosmetics, Inc.
[Doc. # 1 ¶ 31].
18. Defendant Rhythm of Life Cosmetics, Inc. has
misappropriated Plaintiffs’ copyrighted photographic
works with knowledge that the photographic works at
issue did not belong to Defendant Rhythm of Life
Cosmetics, Inc., and Defendant Rhythm of Life
Cosmetics, Inc. made no attempt to obtain permission
or license from anyone, and continues to willfully
engage in unauthorized use of Plaintiffs’
photographic works despite its knowledge of
Plaintiffs as owners of the copyrights and its uses
being unlawful.

[Doc. # 1 ¶ 32].

19. Because Defendant Rhythm of Life Cosmetics, Inc.
continues to use Plaintiffs’ photographic works for
its own commercial purposes after it was given notice
of the infringements, it has demonstrated willful
infringement, which, unless restrained, will
continue, causing irreparable harm to Plaintiffs, for

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which Plaintiffs have no adequate remedy of law.
[Doc. # 1 ¶ 33].
20. Defendant Rhythm of Life Cosmetics, Inc.’s unlawful
use of copies of Plaintiffs’ original photographic
works without license has diminished the value of the
original photographic works by diluting the market
and destroying the distinctiveness of the
photographic works and their identity as being the
exclusive property of Plaintiffs.

[Doc. # 1 ¶ 34].

21. Defendant Rhythm of Life Cosmetics, Inc.’s unlawful
acts have been and are interfering with and
undermining Plaintiffs’ ability to market Plaintiffs’
own original photographic works, thereby impairing
the value and prejudicing the sale by Plaintiffs of
their own photographic works.

By continuing to use

Plaintiffs’ photographic works, despite notice of the
infringements, and even after the filing of the
Complaint in this action, Defendant Rhythm of Life
Cosmetics, Inc. has demonstrated that it intends to
continue, unless restrained, to use Plaintiffs’
copyrighted photographic works, willfully infringing,
and causing irreparable harm to Plaintiffs for which
Plaintiffs have no adequate remedy of law.

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[Doc. # 1

¶¶ 35-36].

Specifically, Defendant Rhythm of Life

Cosmetics, Inc. continues to use Plaintiffs’
photographic works on its commercial Facebook.com web
page, contributing to ongoing, widespread
distribution of Plaintiffs’ photographic works absent
Plaintiffs’ copyright management information by users
of Facebook.com, for which Plaintiffs’ have no
adequate remedy of law.

[Doc. #12-2 ¶¶ 12-13 & Doc.

#12-3 ¶¶ 9-10]
22. As a direct and proximate result of Defendant Rhythm
of Life Cosmetics, Inc.’s wrongful acts, Plaintiffs
have suffered and continue to suffer lost profits and
damages.

[Doc. # 1 ¶ 39].

23. Defendant Rhythm of Life Cosmetics, Inc. has
intentionally removed copyright management
information from at least seventeen (17) of Plaintiff
VINCENT KHOURY TYLOR’s photographic works used on
Defendant Rhythm of Life Cosmetics, Inc.’s commercial
Facebook.com web page and commercial Wordpress.com
web blog without the authority of the copyright
owner, Plaintiff VINCENT KHOURY TYLOR, or the law,
and knowing or having reasonable grounds to know,
that the removal would induce, enable, facilitate, or

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conceal infringements of copyright.

[Doc. # 1 ¶ 45].

CONCLUSIONS OF LAW
A. To the extent that the foregoing findings of fact are
more properly conclusions of law, they shall be
treated as such, and, to the extent that the
following are more properly findings of fact, they
shall be treated as such.
B. The Complaint alleges claims for copyright
infringements, in violation of the United States
Copyright Act, 17 U.S.C. § 101 et. seq., and claims
for removal or alteration of copyright management
information in violation of the Digital Millennium
Copyright Act, 17 U.S.C. § 1202(b).
C. There are two elements to a claim for copyright
infringement: a plaintiff must allege (1) ownership
of a valid copyright and (2) copying of constituent
elements of the work that are original.

Funky Films,

Inc. v. Time Warner Entm't Co., L.P., 462 F.3d 1072,
1076 (9th Cir. 2006); Pacific Stock, Inc. v. Pearson
Edu., Inc., 2012 U.S. Dist. LEXIS 3337 (U.S.D.C. HI,
Jan. 11, 2012) Copy. L. Rep. (CCH) P30,186.

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Plaintiffs have pled facts to establish the necessary
elements of copyright infringements.
D. To establish the Digital Millennium Copyright Act
violations, Plaintiffs must establish that Defendant
Rhythm of Life Cosmetics, Inc. has committed acts
prohibited under 17 U.S.C. § 1202(b), as follows:
§ 1202. Integrity of copyright management information
...
(b) R EMOVAL OR A LTERATION OF C OPYRIGHT
MANAGEMENT INFORMATION. — No person shall without
the authority of the copyright owner or the law —
(1) intentionally remove or alter any copyright
management information
....
Copyright management information includes the name of the author of the
work, including information set forth on a notice of copyright, as well as
identifying symbols referring to the copyright of the work or the terms or
conditions for use of the work. 17 U.S.C. 1202(c). Plaintiffs have pled facts to
establish the necessary elements of the Digital Millennium Copyright Act
violations.
E. “With respect to the determination of liability and
the default judgment itself, the general rule is that
well-pled allegations in the complaint regarding
liability are deemed true.”

Fair Housing of Marin v.

Combs, 285 F.3d 899, 906 (9th Cir. 2002); see
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DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th
Cir. 2007); TeleVideo Sys., Inc. v. Heidenthal,

826

F.2d 915, 917-18

(9th Cir. 1987); see also Fed. R.

Civ. P. 8(b)(6).

The entry of default conclusively

establishes the facts as to liability, but not
damages.

See Geddes v. United Fin. Group, 559 F.2d

557, 560 (9th Cir. 1977).

While the court may

conduct a hearing to determine damages, see Fed. R.
Civ. P. 55(b)(2), the court can rely on evidence
submitted by Plaintiffs.

See Fustok v.

ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir.
1989).
F. As a general rule, “any doubts as to the propriety of
a default are usually resolved against the party
seeking a default judgment.”

VonGrabe v. Sprint PCS,

312 F. Supp. 2d 1313, 1319 (S.D. Cal. 2004) (citing
Pena v. Seguros La Comercial, S.A., 770 F.2d 811, 814
(9th Cir. 1985)).
G. In determining whether to grant default judgment, the
court should consider the following factors:
(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
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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)); see also Parr v. Club
Peggy, Inc., 2012 U.S. Dist. LEXIS 24758 (D. Haw. Jan. 19, 2012).
H. The Eitel factors favor Plaintiffs:

(1) Defendant

Rhythm of Life Cosmetics, Inc.’s failure to file an
answer in this action prejudices Plaintiffs’ ability
to obtain a prompt and efficient resolution; (2)
Plaintiffs have demonstrated that Defendant Rhythm of
Life Cosmetics, Inc. has violated Plaintiffs’
copyrights and has violated the DMCA; (3) Plaintiffs’
complaint sufficiently sets forth the elements to
support the claims under the Copyright Act and the
DMCA; and, (4) the amount of money at stake relative
to the cost of continued litigation makes the matter
appropriate for default judgment.
I. Two of the seven factors are neutral because
Defendant Rhythm of Life Cosmetics, Inc. has not
appeared in this action:

(1) the possibility of a

dispute concerning material facts, and (2) whether
the default was due to excusable neglect, however,
any possible argument as to excusable neglect is
implausible given the extended period of time that
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Defendant Rhythm of Life Cosmetics, Inc. has failed
to appear in this case.

Although the last factor,

the strong policy favoring decisions on the merits,
favors denial of the motion, on balance, the record
strongly favors granting the default judgment.
DAMAGES
Statutory Damages for Willful Copyright
Infringements
J. Pursuant to 17 U.S.C. § 504(c), “A plaintiff may
elect statutory damages regardless of the adequacy of
the evidence offered as to his actual damages and the
amount of the defendant’s profits.”

Columbia

Pictures Indus., Inc. v. Krypton Broad. of
Birmingham, Inc., 259 F.3d 1186, 1194 (9th Cir. 2001)
(citation omitted).

Plaintiffs are entitled to an

award of damages of no less than $750.00 per work
and, for a willful infringement, no more than
$150,000.00 per work for Defendant Rhythm of Life
Cosmetics, Inc.’s violation of the Copyright Act. 17
U.S.C. § 504(c)(1) and (2).
K. In determining an amount of statutory damages for
copyright infringements, district courts will
generally consider: 1) the nature of the
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infringement; 2) the defendant’s purpose and intent;
3) the profit that the defendant reaped, if any, or
the expense that the defendant saved; 4) the revenue
lost by plaintiffs as a result of the infringements;
5) the value of the copyrights; 6) the duration of
the infringements; 7) the defendant’s continuation of
infringement after notice or knowledge of copyright
claims; and, 8) the need to deter this defendant and
other potential infringers.

Sony BMG Music Entm't v.

Tenenbaum, 719 F.3d 67, 69 (1st Cir. 2013)
(quotations omitted); Cross Key Pub. Co., Inc., v.
Wee Inc., 921 F. Supp. 479 (W.D. Mich. 1995)
(considering infringer's refusal to obtain license;
continued violation of copyright despite warning; and
amount operator would owe under proper license); Cass
County Music Co. v. C.H.L.R. Inc., 896 F. Supp. 904
(E.D. Ark. 1995) (considering the amount of money the
defendant saved, the amount the plaintiff lost, and
the defendant's state of mind); Polygram Intern.
Pub., Inc. v. Nevada/TGI, Inc., 855 F. Supp. 1314 (D.
Mass. 1994) (citing deterrence as an additional
factor).

Thus, while a plaintiff need not prove actual

damages in order to receive statutory damages,

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statutory damages should bear some relationship to
actual damages.

See Fitzgerald Pub. Co. v. Baylor Pub.

Co., 670 F. Supp. 1133 (E.D.N.Y. 1987).
L. In applying the factors in this case, the nature of the
infringement consisted of a total of forty-four (44)
different uses of Plaintiff VINCENT KHOURY TYLOR’s
nineteen (19) photographic works and a total of eight
(8) different uses of Plaintiff VINCENT SCOTT TYLOR’s
four (4) photographic works, all of which served as
commercial advertising for Defendant Rhythm of Life
Cosmetics, Inc., and Defendant Rhythm of Life
Cosmetics, Inc.’s purpose was to willfully infringe
and conceal the infringements from Plaintiffs and the
public as shown by the intentional removal of
copyright management information with Plaintiff
VINCENT KHOURY TYLOR’s photographic works.

The cost-

savings that Defendant Rhythm of Life Cosmetics, Inc.
enjoyed and the revenue lost by Plaintiffs equate to
the amount that Defendant Rhythm of Life Cosmetics,
Inc. would have had to pay Plaintiffs to license the
photographic works for the manner in which they were
used on Defendant Rhythm of Life Cosmetics, Inc.’s
commercial Facebook.com and Wordpress.com web pages.

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The value of each copyright in this case is high due to
the photographic works being professional images.

Some

of these infringements began as early as 2011, and
Defendant Rhythm of Life Cosmetics, Inc. is still using
some of Plaintiffs’ photographic works at issue.
M. Plaintiff VINCENT KHOURY TYLOR’s standard licensing
fees for the forty-four (44) uses of his nineteen (19)
photographic works at issue would have totaled
$45,381.60, as detailed in his Declaration (plus
$1891.05 in State of Hawaii general excise tax, for a
total of $47,272.65).
N. Plaintiff VINCENT SCOTT TYLOR’s standard licensing fees
for the eight (8) uses of his four (4) photographic
works at issue would have totaled $8,301.60, as
detailed in his Declaration (plus $345.93 in State of
Hawaii general excise tax, for a total of $8,647.53).

O. Plaintiffs determined their loss by calculating the
license fee for each use of each photographic work at
issue in the size used on Defendant Rhythm of Life
Cosmetics, Inc.’s commercial Facebook.com or
Wordpress.com web pages for the number of years used.

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P. In Warner Bros. Entertainment v. Caridi, 346 F. Supp.
2d 1068 (C.D. Ca. 2004), the plaintiff sought
enhanced statutory damages after an entry of default
judgment against defendants who had engaged in
unauthorized copying and distribution of two movie
“screeners” the plaintiff had loaned them for award
consideration.

Id. at 1069-71.

The federal district

court noted that, “[b]ecause of the entry of default,
the allegations in [the plaintiff’s] Complaint must
be taken as true.

Thus, since [the plaintiff]

alleged willful infringement, the Court must take
[the plaintiff’s] allegation of willful infringement
as true.”

Id. at 1074.

In that case, the plaintiff

sought statutory damages under 17 U.S.C. § 504(c)(2)
for a sum of not more than $150,000.00 per work.

Id.

The court found that the egregiousness of the conduct
in that case was compounded by the defendants’
failure to proffer any defense, and warranted an
award of enhanced statutory damages of $150,000.00
per work.

Id.

Because of Defendant Rhythm of Life

Cosmetics, Inc.’s default, Plaintiffs’ allegations of
willful infringement should be taken as true.

As in

Warner Bros., Defendant Rhythm of Life Cosmetics,

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Inc.’s conduct is clearly egregious as it continues
to use Plaintiffs’ photographic works on its
commercial Facebook.com web page, contributing to
ongoing, widespread distribution of Plaintiffs’
photographic works absent Plaintiffs’ copyright
management information, and the egregious conduct is
compounded by Defendant Rhythm of Life Cosmetics,
Inc.’s failure to proffer any defense to the
Complaint.
Q. Furthermore, Defendant Rhythm of Life Cosmetics,
Inc.’s continuing infringements after notice or
knowledge of Plaintiffs’ copyright claims and the
need to deter Defendant Rhythm of Life Cosmetics,
Inc. from committing further, willful, acts of
copyright infringements as well as dissuade internet
users of committing similar conduct in the future,
are also significant factors that weigh in on the
amount of statutory damages.

The cavalier disregard

for Plaintiffs’ copyrights to the photographic works,
as well as for Plaintiffs’ notice from counsel of the
copyright infringements, demonstrates a need for the
court to impose a heightened award of damages.

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R. Congress made it clear that heightened penalties are
necessary to dissuade such conduct, observing that
“many computer users are either ignorant that
copyright laws apply to Internet activity, or they
simply believe that they will not be caught or
prosecuted for their conduct . . . [and] do not
consider the current copyright infringement penalties
a real threat and continue infringing, even after a
copyright owner puts them on notice that their
actions constitute infringement and that they should
stop the activity or face legal action.”

Capitol

Records, Inc. v. Thomas-Rasset, 692 F.3d 899, 908
(8th Cir. 2012) (quoting H.R. Rep. 106-216, at 3
(1999), 1999 WL 446444, at *3).

And courts have

squarely followed Congress’s intention to make an
example out of willful infringers.

See, e.g.,

Venegas-Hernandez v. Sonolux Records, 370 F.3d 183,
196 (1st Cir. 2004) (“A decision in an infringement
suit to increase the statutory rate based on a
finding of willfulness, like an upward departure from
a sentencing guideline’s range, is a punitive measure
meant to deter.”). The deterrent purpose of statutory

24

damages is important here to discourage future acts
of infringement.
S. Plaintiffs elect to receive statutory damages for the
willful infringements as to each of the twenty-three
(23) photographic works at issue.

Although

Plaintiffs are entitled to seek $150,000.00 per work
for Defendant Rhythm of Life Cosmetics, Inc.’s
willful infringements in this case, Plaintiffs ask
that the Court award statutory damages under 17
U.S.C. § 504(c)(1) for the willful copyright
infringements in the amount of no less than
$167,750.00, representing just less than three-times
the standard licensing fees for the retroactive uses.
Given Defendants’ willful conduct, the Court finds
that Plaintiffs’ request for $167,500.00 is
appropriate.

The Court recommends that Plaintiffs be

awarded $167,500.00 in statutory damages under the
Copyright Act.
Statutory Damages for DMCA Violations
T.

Additionally, pursuant to 17 U.S.C. § 1203(c), Plaintiff VINCENT KHOURY
TYLOR is entitled to an award of damages of no less than $2,500.00 for each
violation of 17 U.S.C. § 1202 and no more than $25,000.00 for each violation.

25

See 17 U.S.C. § 1203(c)(3)(B).
U. Based upon the entry of default, Plaintiff VINCENT KHOURY TYLOR’s
allegations of Defendant Rhythm of Life Cosmetics, Inc.’s removal of
copyright management information from seventeen (17) of his photographic
works as they were used at Defendant Rhythm of Life Cosmetics, Inc.’s
commercial Facebook.com web page should be taken as true. See Warner
Bros., 346 F. Supp. 2d at 1071. Although Plaintiff VINCENT KHOURY
TYLOR may seek up to $25,000.00 for each violation of 17 U.S.C. § 1202, he
seeks no less than $85,000.00 for the DMCA violations, which represents twotimes the minimum total statutory damages available for the seventeen (17)
violations. Plaintiff VINCENT KHOURY TYLOR’s request for $85,000.00 in
statutory damages for the DMCA violations is reasonable under the
circumstances. This Court recommends that Plaintiff VINCENT KHOURY
TYLOR be awarded $85,000.00 in statutory damages for the DMCA violations.

Attorneys’ Fees and Costs
V. Pursuant to 17 U.S.C. § 505, entitled “Remedies for infringement: Costs and
attorney’s fees,” and 17 U.S.C. § 1203, entitled “Civil Remedies,” the Court in
its discretion may allow the recovery of full costs and reasonable attorneys’ fees
to the prevailing party on the copyright infringement claims and the DMCA

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violations.
W. Reasonable attorneys’ fees are generally based on the traditional “lodestar”
calculation set forth in Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). See
Fisher v. SJB-P.D., Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). The court must
determine a reasonable fee by multiplying “the number of hours reasonably
expended on the litigation” by “a reasonable hourly rate.” Hensley, 461 U.S. at
433. Second, the court must decide whether to adjust the lodestar amount based
on an evaluation of the factors articulated in Kerr v. Screen Extras Guild, Inc.,
526 F.2d 67, 70 (9th Cir. 1975), which have not been subsumed in the lodestar
calculation. See Fisher, 214 F.3d at 1119 (citation omitted). The factors the
Ninth Circuit articulated in Kerr are:
(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.
Kerr, 526 F.2d at 70. The subsumed factors taken into account in the “lodestar”
calculation are: “‘(1) the novelty and complexity of the issues, (2) the special
skill and experience of counsel, (3) the quality of representation, . . . (4) the

27

results obtained,’ Morales v. City of San Rafael, 96 F.3d 359, 364 n.9 (9th Cir.
1996) (quoting Cabrales v. County of Los Angeles, 864 F.2d 1454, 1464 (9th
Cir. 1988), reinstated, 886 F.2d 235 (1989), cert. denied, 494 U.S. 1091, 110 S.
Ct. 1838, 108 L. Ed. 2d 966 (1990)), and (5) the contingent nature of the fee
agreement,” City of Burlington v. Dague, 505 U.S. 557, 112 S. Ct. 2638, 2643,
120 L. Ed. 2d 449 (1992). Once calculated, the “lodestar” is presumptively
reasonable. See Pennsylvania v. Delaware Valley Citizens’ Council for Clean
Air, 483 U.S. 711, 728 (1987); see also Fisher, 214 F.3d at 1119 n.4 (the
lodestar figure should only be adjusted in rare and exceptional cases).
X. In determining whether an hourly rate is reasonable,
the Court considers the experience, skill, and
reputation of the attorney requesting fees.

See Webb

v. Ada County, 285 F.3d 829, 840 & n.6 (9th Cir.
2002).

The reasonable hourly rate should reflect the

prevailing market rates in the community.

See id.;

see also Gates v. Deukmejian, 987 F.2d 1392, 1405
(9th Cir. 1992), as amended on denial of reh’g,
(1993) (noting that the rate awarded should reflect
“the rates of attorneys practicing in the forum
district”).

Although attorneys are required to

provide evidence that the rate charged is reasonable,
see Jordan v. Multnomah County, 815 F.2d 1258, 1263
28

(9th Cir. 1987), this Court is aware of the
prevailing rates in the community.

The Court finds

reasonable an hourly rate of $300.00 for Mr. Street
and $150.00 for Mr. Anderson.
Y. The Court finds that Mr. Street reasonably expended
10.7 hours, and Mr. Anderson reasonably expended 37.1
hours, on this case.

When multiplied by their hourly

rates, the resulting fee awards and tax are Three
Thousand Three Hundred and Forty-Three Dollars and
Seventy-Six Cents ($3,343.76) for Mr. Street and Five
Thousand Seven Hundred and Ninety-Six Dollars and
Eighty-Nine Cents ($5796.89) for Mr. Anderson.

The

Court accordingly recommends a total award of
$9,140.65 in attorneys’ fees.

Additionally, the

Court finds that Plaintiffs reasonably incurred
$508.00 in costs and recommends that Plaintiffs be
awarded the same.
INJUNCTIVE RELIEF
Z. Plaintiffs’ motion requests that this Court grant the
relief sought in the Complaint, which includes
injunctive relief.

Applying the factors set forth in

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391
(2006) and Flexible Lifeline Sys., Inc. v. Precision
29

Lift, Inc., 654 F.3d 989, 996 (9th Cir. 2011),
Defendant Rhythm of Life Cosmetics, Inc. continues to
use Plaintiffs’ photographic works on its commercial
Facebook.com web page even after the filing of the
present motion, causing continued widespread
distribution of Plaintiffs’ photographic works absent
Plaintiffs’ copyright management information among
users of Facebook.com; thus Plaintiffs’ have suffered
irreparable injury by the continuing infringing uses
by Defendant Rhythm of Life Cosmetics, Inc.

There is

no adequate remedy of law for Plaintiffs because
Defendant Rhythm of Life Cosmetics, Inc.’s continuing
infringements will require Plaintiffs to file a
multiplicity of lawsuits, as any damages awarded from
this motion will not compensate for the ongoing
infringements and further distribution among users of
Facebook.com.

The balance of hardships necessarily

shifts in Plaintiffs’ favor as the Court can find no
reason why Defendant Rhythm of Life Cosmetics, Inc.
simply cannot remove the Facebook.com postings
containing the infringements and otherwise continue
to advertise its business on Facebook.com; the harm
to Defendant Rhythm of Life Cosmetics, Inc. is thus

30

minimal.

Finally, the public interest will be

served with a permanent injunction, since it will
protect Plaintiffs’ copyrights against future
infringement by Defendant Rhythm of Life Cosmetics,
Inc. and other Facebook.com users.
RECOMMENDATION
Based upon the foregoing findings of fact and
conclusions of law, it is
hereby recommended that Default Judgment be entered in Plaintiffs’ favor and
against Defendant Rhythm of Life Cosmetics, Inc., and that Defendant Rhythm of
Life Cosmetics, Inc. pay to Plaintiffs $167,750.00 in statutory damages for its willful
copyright infringements, $85,000.00 for its DMCA violations, $3,343.76 in
attorneys’ fees and tax for Mr. Street, $5796.89 in attorneys’ fees and tax for Mr.
Anderson, for a total award of attorneys’ fees of $9,140.65 and an award of costs in
the amount of $508.00, and that Defendant Rhythm of Life Cosmetics, Inc. be
permanently enjoined from using any of Plaintiffs’ photographic works at issue
without seeking prior license. This Default Judgment resolves all claims as to
Defendant Rhythm of Life Cosmetics, Inc. and it is hereby recommended that it be
entered as final judgment as to Defendant Rhythm of Life Cosmetics, Inc. under
Rule 54(b) of the Federal Rules of Civil Procedure, there being no just reason for

31

delay due to the other defendant in this matter, Richard D. Stillman, having filed
personal bankruptcy.
IT IS SO FOUND AND RECOMMENDED.
DATED: Honolulu, Hawaii, January 6, 2014.

_____________________________
Kevin S.C. Chang
United States Magistrate Judge

CV 13-00280 DKW-KSC; TYLOR v. RHYTHM OF LIFE COSMETICS, INC., et.al.; FINDINGS
AND RECOMMENDATION TO GRANT PLAINTIFFS’ MOTION FOR ENTRY OF DEFAULT
JUDGMENT AS TO DEFENDANT RHYTHM OF LIFE COSMETICS, INC., dba MAUI
TROPICAL SOAPS

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