Philpot v. Music Times LLC

Filing 34

OPINION AND ORDER ACCEPTING REPORT AND RECOMMENDATION: Finding no clear error in Magistrate Judge Freeman's Report, the Report is adopted without modification. The Clerk of Court shall enter judgment against Music Times for statutory damages of $5,000 and $400 in costs. Appellate review of this decision is unavailable because neither party filed written objections to the Magistrate Judges Report. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010), and as further set forth in this order. (Signed by Judge Denise L. Cote on 5/9/2017) (ap)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------- X
:
LARRY G. PHILPOT,
:
Plaintiff,
:
:
-v:
:
MUSIC TIMES LLC d/b/a MUSICTIMES.COM, :
:
Defendant.
:
:
:
--------------------------------------- X

16cv1277 (DLC)
OPINION AND ORDER
ACCEPTING REPORT
AND RECOMMENDATION

DENISE COTE, District Judge:
On July 5, 2016, the Court entered default against
defendant Music Times LLC d/b/a musictimes.com (“Music Times”),
and referred the matter to Magistrate Judge Debra Freeman for an
inquest and Report and Recommendation as to damages.

On March

29, 2017, Judge Freeman issued her Report and Recommendation.
Neither party submitted objections.

For the following reasons,

the Report’s recommendation is adopted and a default judgment is
entered against Music Times in the amount of $5,000 plus $400 in
costs.
The plaintiff commenced this action on February 19, 2016.
He was assisted by counsel in filing the complaint, and with the
statement of damages, but has otherwise primarily proceeded pro
se.

The plaintiff makes his living through professional

photography, but also allows a small number of his “iconic”
photographs to be used through unpaid Creative Commons licenses,

in particular, the Attribution-Share Alike 3.0 Unported license.
The complaint alleges that Music Times reproduced and
distributed two Creative Commons licensed photographs without
complying with the licenses and without any other permission or
authorization.

The complaint alleges violations of the

Copyright Act and Copyright Revisions Act, 17 U.S.C. §§ 101 et
seq. (the “Copyright Act”), and the Digital Millennium Copyright
Act at 17 U.S.C. § 103 (the “DMCA”).
When considering a report and recommendation, a district
court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3).

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“To accept

those portions of the report to which no timely objection has
been made, a district court need only satisfy itself that there
is no clear error on the face of the record.”

SEC v. Boock,

09cv8261 (DLC), 2015 WL 4605286, at *2 (S.D.N.Y. July 31, 2015)
(citation omitted).
The Court finds no clear error on the face of the record.
In determining the damages recoverable as a result of the
defendant’s copyright infringement, the Report correctly
concluded that the plaintiff had plausibly alleged that by
copying and reproducing the two photographs the defendant
infringed the plaintiff’s copyright, which in the absence of an
answer or any other response establishes the defendant’s
2

liability as a matter of law. 1

The Copyright Act provides

statutory damages “in a sum of not less than $750 or more than
$30,000 as the court considers just” for infringement with
respect to any one work.

18 U.S.C. § 504(c)(1).

The plaintiff

offered no evidence regarding actual damages or the market value
of the copyrighted photographs.

The Report reasonably found

that “[t]aking into account that Plaintiff has not shown any
loss of licensing fees and that the alleged infringing conduct
involved only two instances of unauthorized reproduction -– but
that the Defendant’s violation of Plaintiff’s rights must be
accepted as deliberate and purposeful,” a statutory damages
award of $5,000 is sufficient to compensate the plaintiff and to
punish the defendant for its willful infringement.
The Report recommends that the Court exercise its
discretion to deny attorneys’ fees to the plaintiff, because the
Proposed Findings contains no request for attorneys’ fees or
costs, was not accompanied by supporting documentation to
substantiate a claim for such an award, and the role of counsel
appeared limited from the record.

The Report recommends the

plaintiff be awarded costs for the filing fee of $400 listed on
the Court’s docket.

The plaintiff’s Proposed Findings sought damages for copyright
infringement only, abandoning his separate claim under the DMCA.
1

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CONCLUSION
Finding no clear error in Magistrate Judge Freeman’s
Report, the Report is adopted without modification.

The Clerk

of Court shall enter judgment against Music Times for statutory
damages of $5,000 and $400 in costs.

Appellate review of this

decision is unavailable because neither party filed written
objections to the Magistrate Judge’s Report.

See Thomas v. Arn,

474 U.S. 140, 155 (1985); Wagner & Wagner, LLP v. Atkinson,
Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d
84, 92 (2d Cir. 2010).
Dated:

New York, New York
May 9, 2017
__________________________________
DENISE COTE
United States District Judge

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