KENNEDY v. CREDITGO, LLC
MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 2/5/2016. (TH, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
HONORABLE JEROME B. SIMANDLE
SIMANDLE, Chief Judge:
This matter comes before the Court by way of Plaintiff
Stephen Kennedy’s Motion for Default Judgment. [Docket Item 14].
In Plaintiff’s Motion for Default Judgment, Plaintiff alleged that
Defendant infringed upon Plaintiff’s copyright and removed
copyright management information in violation of 17 U.S.C. § 501
and 17 U.S.C. § 1202. (Id.) On December 2, 2015, this Court
granted Plaintiff’s Motion for Default Judgment as to liability
and costs. [Docket Items 18, 19]. However, Plaintiff’s original
submission did not have sufficient information for the Court to
determine if the statutory damages requested by the Plaintiff were
just (Id.). The Court denied without prejudice Plaintiff’s motion
as to statutory damages, and permitted Plaintiff to submit a
renewed statutory damages application within 14 days of the entry
of the order. [Docket Items 18, 19].
In the opinion accompanying the December 2, 2015 order, the
Court explained that Plaintiff did not provide his licensing rate
nor an estimate of his loss, and requested that Plaintiff provide,
where possible, “the expenses saved and profits reaped by the
infringer and revenue lost by the plaintiff.” [Docket Item 18].
The Court also requested additional information on damages in
regards to the removal of copyright management information. (Id.)
On December 21, 2015, Plaintiff’s attorney wrote a letter to
the Court stating that he had not seen the opinion and order, and
requesting an extension to January 8, 2016. [Docket Item 20]. The
Court granted the extension. [Docket Item 21].
On January 8, 2016, Plaintiff filed an additional submission,
including a supplemental sworn declaration of Stephen Kennedy.
(Declaration of Stephen Kennedy “Kennedy Dec.”)[Docket Item 22].
In the declaration, Plaintiff stated that the image at issue was
created during a photo shoot he produced for an auto insurance
company. (Kennedy Dec. ¶ 22).
Plaintiff stated that the company
paid him $7,600 for the photo shoot and for a limited license.
(Id.) Plaintiff indicated that the fee he was paid “includes the
license fee as well as the cost of production, which includes fees
to the model and for casting, location scouting and fees, prop
selection and preparation.” (Id. ¶ 23). Plaintiff did not specify
what it would have cost Defendant to license the individual photo
“Statutory damages serve the dual purposes of compensation
and deterrence: they compensate the plaintiff for the infringement
of its copyrights; and they deter future infringements by
punishing the defendant for its actions.” Broad. Music, Inc. v.
Spring Mount Area Bavarian Resort, Ltd., 555 F. Supp. 2d 537, 544
(E.D. Pa. 2008) (quoting Schiffer Publ'g, Ltd. v. Chronicle Books,
No. CIV.A.03-4962, 2005 WL 67077, at *5 (E.D. Pa. Jan. 11, 2005)).
“In determining the amount of statutory damages, it is important
that an infringer ‘not reap a benefit from its violation of the
copyright laws [and] that statutory damages should exceed the
unpaid license fees so that defendant will be put on notice that
it costs less to obey the copyright laws than to violate them.’”
Broad. Music, Inc., 555 F. Supp. 2d at 544 (quoting A & N Music
Corp. v. Venezia, 733 F. Supp. 955, 958 (E.D. Pa. 1990)).
To determine the appropriate amount of statutory damages,
courts must consider the following factors: “(1) expenses saved
Plaintiff stated that he would have refused to issue Defendant a
license: “Even if Creditgo had inquired about a stock license for
that or even another photograph, it is highly unlikely that one
would have been granted as my goal is to only allow licensees from
legitimate and blue chip companies to do business with me.”
(Kennedy Dec. ¶ 27).
and profits reaped by the infringer; (2) revenues lost by the
plaintiff; (3) the strong public interest in insuring the
integrity of the copyright laws; and (4) whether the infringement
was willful and knowing or innocent and accidental.” Original
Appalachian Artworks, Inc. v. J.F. Reichert, Inc., 658 F. Supp.
458, 465 (E.D. Pa. 1987). In determining the just amount of
statutory damages, “[t]he defendant's conduct is the most
important factor.” Broad. Music, Inc. v. Longhorn Corral, Inc.,
No. CV 15-950, 2016 WL 164607, at *3 (W.D. Pa. Jan. 14,
2016)(citing Schiffer, 2005 WL 67077, at *5).
Where there has been a default judgment, as here, and the
Plaintiff requests statutory damages in excess of the minimum, the
Court must consider “whether the facts contained in the Complaint,
as well as any evidence adduced by Plaintiffs in their filings,
provide us with a sufficient basis to determine whether the
requested statutory damages are just.” Broad. Music, Inc. v.
Longhorn, 2016 WL 164607, at *3.
III. Copyright Infringement
The Court granted a default judgment to Plaintiff for
Copyright Infringement under 17 U.S.C. § 501. [Docket Item 19].
Plaintiff has requested statutory damages, and is therefore
entitled to damages “not less than $750 or more than $30,000 as
the court considers just.” 17 U.S.C. § 504 (c)(1). Additionally,
under 17 U.S.C. § 504 (c)(2), “in a case where the copyright owner
sustains the burden of proving, and the court finds, that
infringement was committed willfully, the court in its discretion
may increase the award of statutory damages to a sum of not more
than $150,000.” 17 U.S.C.A. § 504 (c)(2). Plaintiff has argued
that Defendant was willful and requested the maximum enhanced
The Court must first decide if Plaintiff has met his burden
to show willfulness. A finding of willfulness requires the
plaintiff “to show that the infringer acted with actual knowledge
or reckless disregard for whether its conduct infringed upon the
plaintiff's copyrights.” Original Appalachian Artworks, 658 F.
Supp. at 464. Plaintiff has certified that the image at issue was
only ever published on his website, and had safeguards designed to
“prevent[ ] viewers from saving copies of my images by right
clicking or otherwise trying to download electronic copies of my
images.” (Kennedy Dec. ¶¶ 9, 19). Plaintiff stated that each page
of Plaintiff’s website includes a copyright notice and “clearly
sets forth plaintiff’s contact information, identifies each image
as copyrighted by plaintiff, proscribes any illegal copying, and
sets forth protocols and procedures for the event that a viewer
desire to license one of plaintiff’s images.” (Supp. Br. at 5;
Kennedy Dec. ¶¶ 11-14). Plaintiff also argues that the removal of
copyright management information constitutes willfulness. (Id.)
The Court finds that Plaintiff has met his burden of showing that
the behavior was willful, as Defendant knew or very clearly should
have known that the images on Plaintiff’s image licensing website
could not be used without Plaintiff’s permission.
Even when infringement is found to be willful, this Court has
“wide discretion as to the damages actually awarded.” Broadcast
Music, Inc. v. DeGallo, Inc., 872 F.Supp. 167, 169 (D.N.J. 1995).
“[A]wards outside the ordinary statutory range are made only in
‘exceptional cases’. . . and there must be evidence of ‘especially
egregious circumstances’ before the enhanced damages become
appropriate.” Schiffer, 2005 WL 67077, at *5 (citing Nimmer on
Copyright § 14.04[B] and Joe Hand Promotions v. Burg's Lounge,
955 F. Supp. 42, 44 (E.D. Pa. 1997)); see also Granger v. One Call
Lender Servs., LLC, No. CIV.A. 10-3442, 2012 WL 3065271, at *3
(E.D. Pa. July 26, 2012). As the Schiffer court explained,
“[C]ourts often award heightened damages where a defendant is a
counterfeiter, a chronic copyright infringer, or if, after
receiving notice of Plaintiff's claims, takes no action to
investigate and merely continues its' infringing behavior.”
Schiffer, 2005 WL 67077, at *5.
In the instant case, Plaintiff sent notice of the
infringement via letter to Defendant on October 8, 2014. (Compl. ¶
27). Defendant responded to the Plaintiff’s letter via telephone
on November 14, 2014. (Compl.¶ 29). The image was subsequently and
promptly removed. (Compl. Ex. E). Given these facts, the Court
does not find especially egregious circumstances justifying the
issuance of heightened damages.
The Court will next look to the Original Appalachian Artworks
factors. See 658 F. Supp. at 465. The factors require an analysis
of the expenses saved and profits reaped by the infringer, and
revenue lost by the plaintiff. See id. Plaintiff has not provided
his licensing fee, but has stated that he was paid $7,600 to create
and license a number of photos, including the image at issue in
this case. (Kennedy Dec. ¶¶ 22, 23). This figure, while useful, is
necessarily larger than the cost of licensing or producing the
individual photo, since it includes multiple photos and the
expenses of the entire photo shoot. The Court is also unable to
unable to identify the profits reaped by the infringer as measured
against the licensing fee. However, the Court observes that the
image was placed on Defendant’s website, and that Plaintiff has not
argued that it was otherwise sold or distributed. Additionally, the
Original Appalachian Artwork factors also require an assessment of
the Defendant’s behavior and conduct and the public interests at
stake. See 658 F. Supp. at 465; see also Broad. Music, Inc. v.
Longhorn Corral, 2016 WL 164607, at *3.
Given these considerations, the Court finds that $7,600 is an
appropriate amount of statutory damages for Defendant’s
infringement. In awarding Plaintiff this sum, the Court has taken
willfulness into account; the award is nearly ten times the
statutory minimum. See Granger v. One Call Lender Servs., LLC, No.
CIV.A. 10-3442, 2012 WL 3065271, at *3 n.4(E.D. Pa. July 26,
2012)(awarding Plaintiff his licensing fees in a willfulness case
using a multiplier of ten and finding $150,000 clearly excessive).
While the $7,600 award includes the licensing fee, the Court finds
it likely that the award is much greater than the licensing fee
alone, ensuring “that defendant will be put on notice that it
costs less to obey the copyright laws than to violate them.” See
Broad. Music, 555 F. Supp. 2d at 544 (quoting A & N Music Corp. v.
Venezia, 733 F. Supp. 955, 958 (E.D. Pa. 1990)). At the same time,
the figure is proportionate to the severity of the infringement
and the Defendant’s conduct, which was a one-time willful posting
of one image to Defendant’s website and prompt removal after
notification of infringement. See Broadcast Music, Inc. v.
DeGallo, Inc., 872 F.Supp. at 169. For the aforementioned reasons,
the Court finds that $7,600 is sufficient to compensate the
Plaintiff and deter the Defendant from future violations. See
Broad. Music, 555 F. Supp. 2d at 544.
IV. Copyright Management Information
This Court also granted a default judgment as to liability
for the Defendant’s removal of copyright management information
under 17 U.S.C. § 1202. [Docket Items 18, 19]. Plaintiff may
recover an award of statutory damages for each violation “in the
sum of not less than $2,500 or more than $25,000.” 17 U.S.C. §
1203(c)(3)(B). Unlike in the copyright infringement context, there
is no willfulness enhancement.
Plaintiff has requested the statutory maximum of $25,000 for
the Defendant’s removal of copyright management information.
Plaintiff’s copyright management information consists of a yellow
watermark, “physically made a part of each image,” which includes
Plaintiff’s name, contact information, and the fact the rights to
the image belong to the Plaintiff. (Supp. Br. at 5). Plaintiff
certified that he “further embed[s] each image electronically with
identifying information and metadata.” (Kennedy Dec. ¶ 8).
Plaintiff has stated that Defendant “brazenly displayed
plaintiff’s image, with the copyright management information
removed. . . .” (Supp. Br. at 5). Defendant removed the copyright
management watermark by cropping the photographic image to exclude
the watermarked area. (See Compl. Ex. A; Compl. Ex. C).
The Court notes that the removal of the copyright management
information assisted with the copyright infringement, allowing
Defendant to present the photo in cropped form on Defendant’s
website. However, given the circumstances of the infringement
discussed in part II, this Court holds that $25,000 is excessive.
This Court finds that $5,000, or twice the statutory minimum for
the removal of copyright management information, is reasonable and
just. In making this determination, the Court has considered the
Defendant’s conduct as well as the dual purposes of statutory
damages to compensate and deter. See Broad. Music, 555 F. Supp. 2d
Accordingly, Plaintiff has proved his entitlement to default
judgment in the amount of $12,600 plus costs. The accompanying
Default Judgment will be entered.
February 5, 2016
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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