Myeress v. Elite Travel Group USA, Inc.

Filing 18

OPINION AND ORDER re: 12 FIRST MOTION for Default Judgment as to Liability and Damages filed by Joe Myeress. Accordingly, Plaintiffs motion for the entry of default judgment is GRANTED. Judgment is entered against Defendant in the am ount of $20,000 for the Copyright Act infringement, and $5,000 for the DMCA infringement. The Court also awards $2,450 in attorney's fees and $500 in costs. This resolves Docket Number 13. (As further set forth in this Order.) (Signed by Judge Alison J. Nathan on 11/14/2018) (cf) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Joe Myeress,
Plaintiff,
18-CV-340 (AJN)

-vOPINION & ORDER
Elite Travel Group USA,
Defendant.

ALISON J. NATHAN, District Judge:
On May 2, 2018, Plaintiff Joe Myeress filed a motion for default judgment. See Dkt.
Nos. 12-13. For the following reasons, the Court GRANTS Plaintiffs motion.

I.

BACKGROUND
On January 12, 2018, Plaintiff filed a complaint against Defendant Elite Travel Group

USA, alleging copyright infringement and the alteration of copyright management information
by Defendant. See Dkt. No. 1, Compl. ifif 7-26. According to the complaint, Defendant publicly
displayed an unauthorized reproduction of a copyrighted photograph of South Florida (the
"Photograph"), owned and registered by Myeress, a professional photographer. Compl. if 1. The
Photograph was displayed on Defendant's website. Compl. if 10. Defendant owns and operates
a travel and tourism website. See Compl. ifif 6, 10.
Defendant was served on January 22, 2018. Dkt. No. 6. Defendant did not appear or
respond to the complaint, and on April 8, 2018, Plaintiff requested the entry of a default against
Defendant. Dkt. No. 7. A certificate of default was filed on April 18, 2018. Dkt. No. 11. On
May 2, 2018, Plaintiff moved for default judgment as to Defendant. Dkt. No. 12. Defendant

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served the motion for default judgment on Defendant and filed an affidavit of service via ECF.
Dkt. No. 15.

II.

DISCUSSION
Federal Rule of Civil Procedure 55 sets out a two-step procedure to be followed for the

entry of judgment against a party who fails to defend: the entry of a default, and the entry of a
default judgment. New Yorkv. Green, 420 F.3d 99, 104 (2d Cir. 2005). The first step, entry of a
default, simply "formalizes a judicial recognition that a defendant has, through its failure to
defend the action, admitted liability to the plaintiff." City ofNew York v. Mickalis Pawn Shop,

LLC, 645 F.3d 114, 128 (2d Cir. 2011); see Fed. R. Civ. P. 55(a) ("When a party against whom a
judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure
is shown by affidavit or otherwise, the clerk must enter the party's default."). "The.second step,
entry of a default judgment, converts the defendant's admission of liability into a final judgment
that terminates the litigation and awards the plaintiff any relief to which the court decides it is
entitled, to the extent permitted by Rule 54(c)." Mickalis Pawn Shop, 645 F.3d at 128. Rule
54(c) states, "[a] default judgment must not differ in kind from, or exceed in amount, what is
demanded in the pleadings." Fed. R. Civ. P. 54(c).

A. Default Judgment Is Warranted
Here, entry of a default judgment is warranted. Defendant has not entered a notice of
appearance or responded to the complaint in any way. It failed to respond when Plaintiff sought
default judgment. Even with this history, the court is expected to exercise "sound judicial
discretion" in determining whether a default judgment should be entered. CHARLES ALAN
WRIGHT ET AL., lOA FED. PRAC. & PROC. CIV. § 2685 (4th ed. 2017). The Court may consider
factors such as: the amount of money at stake; whether material issues of fact or issues of

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substantial public importance are at issue; whether the default is largely technical; whether
plaintiff has been substantially prejudiced by the delay involved; whether the grounds for default
are clearly in doubt; how harsh an effect default judgment might have; whether the default was
caused by a good-faith mistake or by excusable or inexcusable neglect; and plaintiffs actions
throughout. Id. Having considered these factors, the Court concludes that default judgment is
appropriate in these circumstances.

B. Plaintiff Establishes a Prima Facie Case for Recovery
The Court must also evaluate damages. The first step is to look to the complaint to
determine whether the plaintiff has established a prima facie case for recovery. See Lenard v.

Design Studio, 889 F. Supp. 2d 518, 528 (S.D.N.Y. 2012). To establish a violation of the
Copyright Act, a plaintiff must demonstrate his ownership of a valid copyright and defendant's
infringement-that is, copying of original elements of the copyrighted work. See Arista Records

LLC v. Doe 3, 604 F.3d 110, 117 (2d Cir. 2010); Malibu Media, LLC v. Doe, No. 15-cv-2624
(ER), 2015 WL 6116620, at *3 (S.D.N.Y. Oct. 16, 2015). Both requirements are satisfied here.
Plaintiffs complaint demonstrates that he owns a valid copyright in the Photograph. See Compl.

ifif 8-9.

Plaintiff has also provided the Court with the Photograph's copyright Certificate of

Registration. Dkt. No. 17. And the complaint alleges that Defendant infringed on Plaintiffs
copyright by producing and displaying an unauthorized copy of the Photograph on its website.
Compl.

ifif 10-11.
Plaintiffs allegations also establish a violation of removal of copyright management

information under 17 U.S.C. § 1202(b). The Digital Millennium Copyright Act ("DMCA")
prohibits doing any of the following "without the authority of the copyright owner or the law"

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and with knowledge or reasonable grounds to know that it will "induce, enable, facilitate, or
conceal" infringement:
(1) intentionally remove or alter any copyright management information,
(2) distribute or import for distribution copyright management information knowing that
the copyright management information has been removed or altered without authority of
the copyright owner or the law, or
(3) distribute ... works, copies of works, or phonorecords, knowing that copyright
management information has been removed or altered without authority of the copyright
owner or the law.
17 U.S.C. § 1202(b).
"Accordingly, to state a valid claim under subsection 1202(b), a plaintiff must allege 1)
the existence of CMI [copyright management information] on the products at issue; 2) removal
and/or alteration of that information; and 3) that the removal and/or alteration was done
intentionally." Aabergv. Francesca's Collections, Inc., No. 17-CV-115 (AJN), 2018 WL
1583037, at *6 (S.D.N.Y. Mar. 27, 2018).
As relevant here, the statutory definition of CMI includes: 1) "[t]he name of, and other
identifying information about, the author of a work," § 1202(c)(2); 2) "[t]he name of, and other
identifying information about, the copyright owner of the work, including the information set
forth in a notice of copyright," § 1202(c)(3); and 3) "[i]dentifying numbers or symbols referring
to such information or links to such information." § 1202(c)(7).
Plaintiff alleges that "[w ]hen the Photograph was first published it contained a watermark
on the photograph." Compl.

if 20; see Compl. Ex. A.

Plaintiff alleges that Defendant

"intentionally and knowingly removed the watermark identifying Plaintiff as the photographer of
the Photograph," and did so "without the knowledge or consent of Plaintiff." Compl. ifif 21, 23,
24. These allegations, which are taken as true after default, are sufficient to establish liability
under subsection 1202(b).

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Given this evidence, the Court finds that Plaintiff has established a prima f acie case for
recovery on both claims.

C. Plaintiff Provides Sufficient Evidence of Damages
"Once liability is established, the sole remaining issue before the court is whether the
plaintiff has provided adequate support for the relief it seeks." Bleecker v. Zetian Sys., Inc., No.
12 Civ. 2151, 2013 WL 5951162, at *6 (S.D.N.Y. Nov. 1, 2013) (citing Transatlantic Marine
Claims Agency, Inc. v. Ace Shipping Corp., Div. ofAce Young Inc., 109 F.3d 105, 111 (2d Cir.
1997)). "Even when a default judgment is warranted based on a party's failure to defend, the
allegations in the complaint with respect to the amount of the damages are not deemed true. The
district court must instead conduct an inquiry in order to ascertain the amount of damages with
reasonable certainty." Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir.
1999) (internal citations omitted). "Establishing the appropriate amount of damages involves
two steps: ( 1) 'determining the proper rule for calculating damages on ... a claim'; and (2)
'assessing plaintiffs evidence supporting the damages to be determined under this rule.'"
Begum v. Ariba Disc., Inc., No. 12-CV-6620, 2015 WL 223780, at *4 (S.D.N.Y. Jan. 16, 2015)
(alteration in original) (quoting Credit Lyonnais, 183 F.3d at 155).
To determine the amount of damages, the Court may conduct a hearing, but doing so is
not necessary "as long as [the Court] ensure[s] that there was a basis for the damages specified in
the default judgment." Transatlantic Marine, 109 F.3d at 111 (internal quotation marks
omitted); see also Action SA. v. Marc Rich & Co., 951 F.2d 504, 508 (2d Cir. 1991) (stating that
a district judge may, but is not required to, conduct a hearing on the matter of damages).

a. Copyright Act Claim

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Under the Copyright Act, a plaintiff who elects statutory damages is entitled to an award
of between $750 and $30,000 per work infringed, "as the court considers just." 17 U.S.C. § 504
(c)(1 ). Where the infringement is "willful," the maximum permissible award per infringed work
rises to $150,000. Id. § 504 (c)(2).
The Copyright Act affords the trial court "wide discretion" in setting the amount of
statutory damages. Fitzgerald Pub! 'g Co. v. Baylor Pub! 'g Co., 807 F .2d 1110, 1116 (2d Cir.
1986). "Case law reflects a wide range of awards where there have been infringing uses of
photographs." Burch v. Nyarko, No. 6-cv-7022 (LAP) (GWG) 2007 WL 2191615, at *3
(S.D.N.Y. July 31, 2007) (collecting cases). In calculating the appropriate statutory damages
award, courts in this Circuit consider:
(1) the infringer's state of mind; (2) the expenses saved, and profits earned, by the
infringer; (3) the revenue lost by the copyright holder; (4) the deterrent effect on the
infringer and third parties; (5) the infringer's cooperation in providing evidence
concerning the value of the infringing material; and (6) the conduct and attitude of the
parties.

Bryant v. Media Right Prods., 603 F.3d 135, 144 (2d Cir. 2010) (citation omitted). Here,
Plaintiff seeks a statutory award of $30,000. Dkt. No. 13 at if 10.
It is established that Defendant willfully infringed Plaintiffs copyright, Compl.

if 15, and

Defendant's "default and subsequence silence shows a lack of cooperation in determining
damages." Hollander Glass Texas, Inc. v. Rosen-Paramount Glass Co., 291 F. Supp. 3d 554,
559 (S.D.N.Y. 2018). "However, not all willful conduct constitutes the kind of truly egregious
conduct that justifies maximum damages." Reilly v. Commerce, No. 15-cv-5118 (PAE) (BCM),
2016 WL 6837895, at *9 (S.D.N.Y. Oct. 31, 2016) (quotation omitted). Here, several factors
weigh against granting the maximum statutory damages. Plaintiff has not shown that he lost
revenue as a result of the infringement, nor has he alleged anything regarding Defendant's profits

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as a result of the use of his Photograph. Courts have often refused to award the statutory
maximum without any evidence of lost revenue or information about a defendant's profits. See

All-Star Mktg. Grp., LLC v. Media Brands Co., 775 F. Supp. 2d 613, 624 (S.D.N.Y. 2011)
(collecting cases). Cases where high statutory damages are awarded typically involve defendants
who profit significantly despite repeated notices that they are infringing on the plaintiffs
copyright. See, e.g., Ermenegildo Zenga Corp. v. 56th Street Menswear, Inc., No. 6-cv-7827
(HB) (GWG), 2008 WL 4449533, at *1 (S.D.N.Y. Oct. 2, 2008). Plaintiff has not provided any
evidence of that here.
In analogous cases, courts have awarded statutory damages between $15,000 and
$30,000. See Hollander Glass Texas, Inc., 291 F. Supp. at 560 (awarding $25,000 for use of
copyrighted image on website); All-Star Mktg. Grp., LLC, 775 F.Supp.2d at 627 (awarding
$25,000 for use of website images); Burch v. Nyarko, 2007 WL 2191615, at *3 (S.D.N.Y. July
31, 2007) (awarding $15,000 per photograph published on infringer's website); Getapedcom,

Inc. v. Cangemi, 188 F.Supp.2d 398, 403 (S.D.N.Y. 2002) (awarding $30,000 for willful
infringement of copyrighted website code). In light of the caselaw, and the facts of this case, the
Court concludes that an award of $20,000 is appropriate.

b. DMCA Claim
The DMCA permits a plaintiff to recover an award of statutory damages, in the range of
$2,500 to $25,000, "for each violation of section 1202." 17 U.S.C. § 1203(3)(B). And Plaintiff
may recover under the DMCA, in addition to the Copyright Act, as each statute "protect[s]
different interests." Agence France Presse v. Morel, No. 10-cv-2730 (AJN), 2014 WL 3963124,
at *10 (S.D.N.Y. Aug. 13, 2014). In awarding statutory damages under the DMCA, courts
"consider [several] factors, namely, the difficulty of proving actual damages, the circumstances

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of the violation, whether [d]efendants violated the DMCA intentionally or innocently, and
deterrence." Id.
Plaintiff seeks a statutory award of $10,000 under the DMCA claim. Dkt. No. 13 at if 11.
Plaintiffs allegations, which are taken as true after default, suggest that Defendant acted
willfully in removing Plaintiffs CMI from the Photograph. However, the limited factual
information provided to the Court makes it difficult to assess the circumstances of the violation.
Additionally, Plaintiff cites to no caselaw to support his request for $10,000. See Dkt. No. 13 at

if 11 (stating only that Plaintiff requests a statutory award in the amount of $10,000 for the
removal of his watermark). The Court concludes that an award of $5,000 is appropriate in this
case. Cf Sheldon v. Plot Commerce, No. 15-cv-5885 (CBA) (CLP), 2016 WL 5107072, at *17
(E.D.N.Y. Aug. 26, 2016), report and recommendation adopted, 2016 WL 5107058 (E.D.N.Y.
Sept. 19, 2016) (awarding maximum statutory damages of $25,000 per DMCA violation where
Defendant continued to use the photograph despite receiving notice from Plaintiff that its
conduct represented infringement).
D. Attorney's Fees
The Copyright Act expressly permits an award ofreasonable attorney's fees. 17 U.S.C. §
505. Similarly, the DMCA permits the court, "in its discretion," to award reasonable attorney's
fees to the prevailing party in a civil action under section 1202. See 17 U.S.C. § 1203(b)(5).
Here, awarding fees and costs to Plaintiff is appropriate. See Kepner-Tregoe, Inc. v. Vroom, 186
F.3d 283, 289 (2d Cir. 1999) (affirming award of attorneys' fees and costs where there was
willful infringement).

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Plaintiff seeks attorney's fees of $4,500. Dkt. No. 13 at if 12. Plaintiffs counsel states
that the $4,500 is the equivalent of 12.75 hours of billable work multiplied by $350 an hour, plus
any fees incurred subsequent to the filing of his default judgment motion. Dkt. No. 13 at if 12.
"The most useful starting point for determining the amount of a reasonable fee is the
number of hours reasonably expended on the litigation multiplied by a reasonable hourly
rate." Arbor Hill Concerned Citizens Neighborhood Ass 'n v. County ofAlbany, 522 F .3d 182,
186 (2d Cir. 2008) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, (1983)). The hourly rate
should be "in line with those [rates] prevailing in the community for similar services by lawyers
ofreasonably comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 896
n. 11 (1984). "In determining what a reasonable hourly rate is, the court should not only
consider the rates approved in other cases in the District, but should also consider any evidence
offered by the parties. The Court is also free to rely on its own familiarity with prevailing rates
in the District." Noble v. Crazetees.com, No. 13-cv-5086 (PAE) (HBP), 2015 WL 5697780, at
*9 (S.D.N.Y. Sept. 28, 2015) (citations omitted). The "fee applicant has the burden of showing
by satisfactory evidence-in addition to the attorney's own affidavits-that the requested hourly
rates are the prevailing market rates." Farbotko v. Clinton Cty. ofNew York, 433 F.3d 204, 209
(2d Cir. 2005) (quotation omitted).
Plaintiffs counsel states that he is the "Managing partner at Liebowitz Law Firm PLLC."
Dkt. No. 13 at if 12. And that the "rate of $350/hr. is consistent with (and substantially less than)
rates charged by other managing partners in New York city law firms." Id. However, Plaintiffs
counsel provides no background about how long he has been practicing, or whether he has any
expertise relevant to the case. A review of cases in this district and in the Eastern District of
New York suggests that courts have approved associate rates of $350, and up to $500 for

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partners in copyright cases. See Romanowicz v. Alister & Paine, Inc., No. 17-CV-8937 (PAE)
(KHP), 2018 WL 4762980, at *7 (S.D.N.Y. Aug. 3, 2018), report and recommendation adopted,
2018 WL 4759768 (S.D.N.Y. Oct. 1, 2018) (collecting cases). Plaintiff's counsel has also
previously been awarded $350 per hour in this district. Id. Accordingly, the Court will award
attorney's fees at a rate of $350 an hour for Plaintiff's counsel.
The next issue is the reasonableness of the hours spent on the litigation. Although
Plaintiff provided time records in support of his attorney's fees request, the Court believes some
of the time reflected is excessive given the work performed in this case, which has essentially
only been the Complaint, motion for default judgment, and accompanying materials. As of
February of this year, Plaintiff's counsel had "filed over 500 cases in this district alone."
McDermott v. Monday, LLC, No. 17-cv-9230 (DLC), 2018 WL 1033240, at *3 (S.D.N.Y. Feb.
22, 2018). Plaintiff's counsel "routinely represents photographers in this district and uses
template documents to file complaints." Romanowicz v. Alister & Paine, Inc., No. 17-CV-8937
(PAE) (KHP), 2018 WL 4762980, at *6 (S.D.N.Y. Aug. 3, 2018), report and recommendation
adopted, 2018 WL 4759768 (S.D.N.Y. Oct. 1, 2018). The Court is therefore skeptical that
conducting research on default judgment and statutory damages in a copyright matter would
have taken Plaintiff's counsel over two hours, or that drafting the default judgment materials
would have taken over seven hours. Plaintiff's submissions also contained limited legal analysis,
and primarily consisted of lengthy string-cites. Certain tasks, such as process of service, serving
the notice of the initial pretrial conference, and drafting and filing an affidavit of service, could
have been handled by a less experienced attorney at a lower hourly rate. Accordingly, the Court
holds that Plaintiff is entitled to only seven hours in billed work. The Court therefore approves
counsel's hourly rate of $350 per hour for seven hours at a total attorney's fees award of $2,450.

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Plaintiff also seeks costs of $500. Dkt. No. 13 at if 13. Section 505 allows the prevailing
party to recover its "full costs" incurred in protection of its copyright. 17 U.S.C. § 505. Plaintiff
seeks costs for the court filing fee, the service fee, and the cost of certified mail. Such costs are
reasonable. See Zimmerman v. Portfolio Recovery Assocs., LLC, 2013 WL 6508813, at *13
(S.D.N.Y. Dec. 12, 2013) ("where ... there is no doubt that there were legitimate expenses in
th[ e] case, the Court [may] exercise its discretion [and award costs].") (internal quotation marks
and citation omitted) (alteration in original). Plaintiff is therefore awarded $500 in costs.

III.

CONCLUSION
Accordingly, Plaintiffs motion for the entry of default judgment is GRANTED.

Judgment is entered against Defendant in the amount of $20,000 for the Copyright Act
infringement, and $5,000 for the DMCA infringement. The Court also awards $2,450 in
attorney's fees and $500 in costs. This resolves Docket Number 13.
SO ORDERED.

Dated: November
2018
New York, New York
United States District Judge

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