Bayoh v. Afropunk Fest 2015 LLC et al

Filing 162

ORDER:The plaintiff brought this action seeking damages and injunctive relief. For the following reasons, the defendants motion for summary judgment on the damages claims is granted and the jury trial, scheduled to begin on November 2, 2020, is cance lled. The plaintiffs claim for injunctive relief will beaddressed at a conference to be held on October 30. Plaintiff Mambu Bayoh is a photographer and sued Afropunk LLC (Afropunk) and two of its employees (collectively, Defendants) for copyright inf ringement. Bayoh asserts thatthe Defendants use of 28 of his copyrighted photographs in connection with the promotion of Afropunk music festivals exceeded the limited license he had given Afropunk. Because Bayoh did not timely register his photograph s, he may not obtain an award of statutory damages. On October 26, 2020, this Court granted the Defendants motion to exclude Bayohs two damages experts from testifying at trial. Bayoh v. Afropunk LLC, No. 18CV5820 (DLC), 2020 WL 6269300, at *1(S.D.N. Y. Oct. 26, 2020). Through these experts, Bayoh sought to prove at trial that he is entitled to an award of actual damages and the disgorgement of Afropunks profits. An Order of October 26 required the parties to address, in light of the ruling on th e motion to exclude testimony from the two expertsfor the plaintiff, whether this action should be dismissed in its entirety. In response, Bayoh concedes that without these experts he is unable to establish an entitlement to any damages award. While an award of damages is not an element of a copyright claim, On Davis v. The Gap, Inc., 246 F.3d 152, 158 (2d Cir.2001), Bayoh contends that he has one surviving claim -- a claim for injunctive relief. A claim for injunctive relief sounds in equity. G reat-W. Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 211 n.1 (2002). As a result, Bayoh no longer has a right to a jury trial and the November 2 jury trial in cancelled. SeePereira v. Farace, 413 F.3d 330, 337 (2d Cir. 2005) (By preserving the r ight to a jury trial only in suits at common law, the Seventh Amendment of the United States Constitution perpetuates the law/equity dichotomy.). A conference will be held to address Bayohs assertion that he has an outstanding claim for injunctive re lief. While a preliminary injunction was entered in this case on July 11, 2018, Bayohs pretrial order, submitted on October 16, 2020, gave no notice of any intent to seek a permanent injunction. In opposing dismissal of this case, Bayoh suggests that the Defendants should be held in contempt of violation of the preliminary injunction. No contempt proceeding may be initiatedwithout the filing a notice of motion or order to show cause. L. Civ. R. 83.6. Accordingly, it is hereby ORDERED that the De fendants motion for summary judgment on plaintiffs damages claims is granted. IT IS FURTHER ORDERED that the November 2, 2020 jury trial is cancelled. IT IS FURTHER ORDERED that a telephone conference will be held on Friday, October 30, 2020 at 4:00 p.m. The dial-in credentials for the telephone conference are the following:Dial-in: 888-363-4749 Access code: 4324948. IT IS FURTHER ORDERED that the parties shall use a landline if one is available.(Telephone Conference set for 10/30/2020 at 04:00 PM before Judge Denise L. Cote.) (Signed by Judge Denise L. Cote on 10/28/2020) (gr)

Case 1:18-cv-05820-DLC-KNF Document 162 Filed 10/28/20 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------

X
:
MAMBU BAYOH,
:
:
Plaintiff,
:
:
-v:
:
AFROPUNK LLC, MATTHEW MORGAN and
:
JOCELYN COOPER, individually,
:
:
Defendants.
:
:
--------------------------------------- X

18cv5820
(DLC)
ORDER

DENISE COTE, District Judge:
The plaintiff brought this action seeking damages and
injunctive relief.

For the following reasons, the defendants’

motion for summary judgment on the damages claims is granted and
the jury trial, scheduled to begin on November 2, 2020, is
cancelled.

The plaintiff’s claim for injunctive relief will be

addressed at a conference to be held on October 30.
Plaintiff Mambu Bayoh is a photographer and sued Afropunk
LLC (“Afropunk”) and two of its employees (collectively,
“Defendants”) for copyright infringement.

Bayoh asserts that

the Defendants’ use of 28 of his copyrighted photographs in
connection with the promotion of Afropunk music festivals
exceeded the limited license he had given Afropunk.
Because Bayoh did not timely register his photographs, he
may not obtain an award of statutory damages.

On October 26,

Case 1:18-cv-05820-DLC-KNF Document 162 Filed 10/28/20 Page 2 of 4

2020, this Court granted the Defendants’ motion to exclude
Bayoh’s two damages experts from testifying at trial.

Bayoh v.

Afropunk LLC, No. 18CV5820 (DLC), 2020 WL 6269300, at *1
(S.D.N.Y. Oct. 26, 2020).

Through these experts, Bayoh sought

to prove at trial that he is entitled to an award of actual
damages and the disgorgement of Afropunk’s profits.

An Order of

October 26 required the parties to address, in light of the
ruling on the motion to exclude testimony from the two experts
for the plaintiff, whether this action should be dismissed in
its entirety.

In response, Bayoh concedes that without these

experts he is unable to establish an entitlement to any damages
award.
While an award of damages is not an element of a copyright
claim, On Davis v. The Gap, Inc., 246 F.3d 152, 158 (2d Cir.
2001), Bayoh contends that he has one surviving claim -- a claim
for injunctive relief.
equity.

A claim for injunctive relief sounds in

Great-W. Life & Annuity Ins. Co. v. Knudson, 534 U.S.

204, 211 n.1 (2002).

As a result, Bayoh no longer has a right

to a jury trial and the November 2 jury trial in cancelled.1

1

See

Because the COVID-19 pandemic is ongoing, this court has
reconfigured several courtrooms and taken other measures to
ensure the health and safety of all visitors to the courthouse,
including members of the venire and jurors. While arrangements
have been made to allow this case to proceed to trial before a
jury on November 2, it is appropriate to provide the Clerk of
2

Case 1:18-cv-05820-DLC-KNF Document 162 Filed 10/28/20 Page 3 of 4

Pereira v. Farace, 413 F.3d 330, 337 (2d Cir. 2005) (“By
preserving the right to a jury trial only in ‘suits at common
law,’ the Seventh Amendment of the United States Constitution
perpetuates the law/equity dichotomy.”).
A conference will be held to address Bayoh’s assertion that
he has an outstanding claim for injunctive relief.

While a

preliminary injunction was entered in this case on July 11,
2018, Bayoh’s pretrial order, submitted on October 16, 2020,
gave no notice of any intent to seek a permanent injunction.
In opposing dismissal of this case, Bayoh suggests that the
Defendants should be held in contempt of violation of the
preliminary injunction.

No contempt proceeding may be initiated

without the filing a notice of motion or order to show cause.
L. Civ. R. 83.6.

Accordingly, it is hereby

ORDERED that the Defendants’ motion for summary judgment on
plaintiff’s damages claims is granted.
IT IS FURTHER ORDERED that the November 2, 2020 jury trial
is cancelled.

Court with as much notice as possible regarding the scheduling
of trials and their cancellation.
3

Case 1:18-cv-05820-DLC-KNF Document 162 Filed 10/28/20 Page 4 of 4

IT IS FURTHER ORDERED that a telephone conference will be
held on Friday, October 30, 2020 at 4:00 p.m.

The dial-in

credentials for the telephone conference are the following:
Dial-in:
Access code:

888-363-4749
4324948

IT IS FURTHER ORDERED that the parties shall use a landline
if one is available.
Dated:

New York, New York
October 28, 2020

4