Joe Hand Promotions, Inc. v. Infante et al

Filing 18

MEMORANDUM AND ORDER: granting 17 Motion for Default Judgment. For the foregoing reasons, we grant the motion for default judgment and award damages in the sum of $6,440.00. The Clerk of Court is respectfully directed to enter final judgment in favor of plaintiff and to terminate the motion pending at docket entry 17. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 10/14/2020) (ama) Transmission to Orders and Judgments Clerk for processing.

Case 1:20-cv-01650-NRB Document 18 Filed 10/14/20 Page 1 of 7

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------X
JOE HAND PROMOTIONS, INC.,
Plaintiff,

MEMORANDUM AND ORDER

- against -

20 Civ. 1650 (NRB)

ALBIN INFANTE, Individually, and as
Officer, Director, Shareholder and/or
Principal of MOFONGO EL MOCANO RESTAURANT
AND LOUNGE CORP.
and
MOFONGO EL MOCANO RESTAURNT AND LOUNGE
CORP.
Defendants.
----------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
On February 25, 2020, plaintiff Joe Hand Promotions, Inc.
(“plaintiff”)

brought

this

action

against

Albin

Infante

(“Infante”) and Mofongo el Mocano Restaurant and Lounge Corp.
(“Mofongo”)

(together, “defendants”).

Plaintiff

alleged that

defendants violated the Copyright Act, 17 U.S.C. § 504, and the
Communications Act of 1934, 47 U.S.C. § 605, by intercepting and
exhibiting a broadcast of the January 19, 2019 boxing match between
Manny Pacquiao and Adrien Broner (“Event”) to their patrons in
violation of plaintiff’s exclusive rights of distribution and
public performance for the Event.

1

Plaintiff further alleges that

Case 1:20-cv-01650-NRB Document 18 Filed 10/14/20 Page 2 of 7

defendants could have purchased a license to broadcast the Event
lawfully for $1,500.

ECF Nos. 17-1 at 10, 17-5.

Defendants Mofongo and Infante were served with copies of the
summons and complaint on March 10, 2020 and March 17, 2020,
respectively.

See ECF Nos. 11-12.

On June 25, 2020, after

defendants failed to answer the complaint, the Clerk of Court
entered certificates of default as to both defendants.
Nos. 15-16.
default.

See ECF

Thereafter, on August 20, 2020, plaintiff moved for

See ECF No. 17.

In its motion for default, see ECF No.

17-1, plaintiff claims $30,000 in damages pursuant to the Copyright
Act and the Communications Act.
I.

Statutory Framework
For an established violation of the Copyright Act, a court

may award a plaintiff statutory damages of “not less than $750 or
more
§

than

$30,000

504(c)(1).

as

the

Moreover,

court
if

the

considers

just.”

“infringement

was

17

U.S.C.

committed

willfully,” the Court may, in its discretion, increase the award
of statutory damages up to $150,000.

Id. § 504(c)(2).

“[A]

defendant's knowledge that its actions constitute an infringement
[of

the

Copyright

Act]

establishes

that

willfully” within the meaning of the Act.

the

defendant

acted

Fitzgerald Publishing

Co., Inc. v. Baylor Publishing Co., Inc., 807 F.2d 1110, 1115 (2d
Cir. 1986).

Here, plaintiff claims $5,000 in statutory damages

2

Case 1:20-cv-01650-NRB Document 18 Filed 10/14/20 Page 3 of 7

pursuant to Section 504(c)(1) and an additional $5,000 for willful
violation of the Copyright Act under Section 504(c)(2).
Plaintiff

also

claims

damages

under

Section

605

of

the

Communications Act, which protects against the “the interception
of cable-borne, as well as over-the-air, pay television where
cable-borne transmissions originate as satellite transmissions.”
Top Rank, Inc. v. Ortiz, No. 01 Civ. 8427, 2003 WL 1960211, at *2
(S.D.N.Y. Mar. 27, 2003) (citing Cablevision Sys. New York City
Corp. v. Lokshin, 980 F. Supp. 107, 112 (E.D.N.Y. 1997)).

Section

605 provides for penalties “of not less than $1,000 or more than
$10,000”

for

each

violation

of

section

605(a),

47

U.S.C.

§ 605(e)(3)(c)(i)(II), and for an additional amount of as much as
$100,000 where the violations were committed “willfully and for
purposes of direct or indirect commercial advantage or private
financial

gain,”

id.

§

605(e)(3)(c)(ii).

With

respect

to

willfulness, “the question for the court is whether the defendant
has

exhibited

disregard

for

the

indifference for its requirements.”

governing

statute

and

an

Joe Hand Promotions, Inc. v.

Levin, No. 18 Civ. 9389, 2018 WL 3050852, at *4 (S.D.N.Y. July 12,
2019) (internal quotations omitted).

In addition, Section 605

directs the Court to award “full costs,” including reasonable
attorneys’ fees, “to an aggrieved party who prevails.”
§ 605(e)(3)(b)(iii).
statutory

damages,

47 U.S.C.

Here, plaintiff claims the maximum amount of
$10,000,
3

pursuant

to

47

U.S.C.

Case 1:20-cv-01650-NRB Document 18 Filed 10/14/20 Page 4 of 7

§ 605(e)(3)(c)(i)(II), as well as an additional $10,000 for willful
violation of Section 605(a) pursuant to § 605(e)(3)(c)(ii).
When determining an award of statutory damages, a court may
consider a variety of factors, including “the deterrent effect on
the infringer and third parties” and “the revenue lost by the
copyright holder.”

Bryant v. Media Right Productions Inc., 603

F.3d 135, 144 (2d Cir. 2010).

In order to ascertain lost revenues,

the court can take into account unpaid licensing fees.

BWP Media

USA Inc. v. Uropa Media, Inc., No. 13 Civ. 7871, 2014 WL 2011775,
at *2 (S.D.N.Y. May 16, 2014).
II.

The Instant Case
Where, as here, defendants have defaulted, all of plaintiff’s

factual allegations, except those related to damages, must be
accepted as true.

Garden City Boxing Club, Inc. v. Guzman, No. 03

Civ. 8776, 2005 WL 1153728, at *2 (S.D.N.Y. Apr. 26, 2005).
With respect to its Copyright Act claim, those admissions
establish that plaintiff had been assigned the exclusive rights of
distribution and public performance under copyright to certain
commercial
publicly

establishments
displayed

the

for

the

Event

Event,

without

and

that

obtaining

defendants
a

license.

Accordingly, plaintiff is entitled to a default judgment on its
Copyright Claim.

See Top Rank, Inc. v. Allerton Lounge Inc., No.

96 Civ. 7864, 1998 WL 35151728, at *5 (S.D.N.Y. Mar. 5, 1998)
(entitlement to damages under 17 U.S.C. § 504 where plaintiff had
4

Case 1:20-cv-01650-NRB Document 18 Filed 10/14/20 Page 5 of 7

the exclusive rights of distribution for the program).

With

respect to its Communications Act claim, plaintiff alleged that
the Event originated via satellite and that defendants, without a
license authorizing them to do so, intercepted and exhibited the
Event.

Accordingly, plaintiff also is entitled to a default

judgment on its Communications Act claim.

Kingvision Pay-Per-View

Ltd. v. Hansen, No. 02 Civ. 6587, 2004 WL 744230, at *2 (S.D.N.Y.
Apr. 5, 2004) (47 U.S.C. § 605(a) protects against the theft of
“satellite communications such as the fight”).
Moreover,
§

504(c)(2),

as
47

relevant
U.S.C.

§

to

both

claims,

605(e)(3)(c)(ii),

willfully when they violated the Acts.

see

17

defendants

U.S.C.
acted

As an initial matter,

Mofongo marketed the Event to potential patrons on Instagram.
Then,

defendants

television

sets

arranged
without

to

broadcast

authorization,

the
which

Event
is

on

three

“itself

a

demonstration of willfulness, since signals do not descramble
spontaneously, nor do television sets connect themselves to cable
distribution systems.”
Civ.

6926,

2018

WL

J&J Sports Prods., Inc. v. Ramirez, No. 17
1961107,

at

*2

(S.D.N.Y.

Apr.

9,

2018)

(alteration in original) (quoting J&J Sports Prods., Inc. v. Onyx
Dreams Inc., No. 12 Civ. 5355, 2013 WL 6192546, at *6 (E.D.N.Y.
Nov. 26, 2013)).
Plaintiff claims damages pursuant to both the Copyright Act
and the Communications Act based on the same set of facts, which
5

Case 1:20-cv-01650-NRB Document 18 Filed 10/14/20 Page 6 of 7

is permissible as a matter of law.

See Joe Hand Promotions, Inc.

v. Maupin, No. 15 Civ. 6335, 2018 WL 2417840, at *8 (E.D.N.Y. May
25, 2018) (“[e]ach Act vindicates separate rights and courts have
found it proper to award damages under both Acts”).

Nevertheless,

the Court finds that the $30,000 in damages claimed by plaintiff
are excessive in light of the injury suffered.

See Joe Hand, 2018

WL 3050852, at *6 (citations omitted) (concluding that it would be
“demonstrably excessive” to award substantial damages under both
the Copyright Act and the Communications Act).

As alleged by

plaintiff, defendants could have purchased broadcast rights for
the Event for $1,500.

ECF Nos. 17-1 at 10, 17-5.

Accordingly, the Court awards plaintiff statutory damages
under the Copyright Act in the amount of $3,000 and under the
Communications Act in the amount of $3,000, for a total of $6,000.
This amount reflects that damages are properly awarded under both
Acts, see Joe Hand, 2018 WL 2417840, at *8, and also seeks to
compensate

plaintiff’s

lost

licensing

fee

of

$1,500

while

deterring future conduct in violation of the Acts, see BWP Media,
2014 WL 2011775, at *2 (finding it appropriate to “treble the
actual damages” to reflect lost revenue and deter wrongful acts);
see

also

Joe

Hand,

2018

WL

3050852,

at

*4

(“Under

similar

circumstances, courts have awarded enhanced damages equal to three
times the amount of statutory damages.”).

6

Case 1:20-cv-01650-NRB Document 18 Filed 10/14/20 Page 7 of 7

While plaintiff has not requested attorney’s fees in its
motion for default judgment, the docket reflects that plaintiff
paid a $400 filing fee and $40 to effect service.
11.

See ECF Nos. 1,

We therefore award plaintiff an additional $440 in costs.

Garden City Boxing, 2005 WL 1153728, at *4 (“An award of costs,
including attorneys' fees, is mandatory under § 605.
has not sought attorneys' fees.

[Plaintiff]

It has, however, presented

evidence that it incurred $302.50 in costs, consisting of the
filing

fee,

process.

investigative

expenses,

and

the

cost

of

serving

It is entitled to an award of costs in that amount.”)

(internal citations omitted); see also Joe Hand Promotions, Inc.
v. Rosero, No. 19 Civ. 792, 2020 WL 2572328, at *9 (E.D.N.Y. Feb.
18, 2020) (awarding filing and service of process fees in absence
of request for attorney’s fees).
For the foregoing reasons, we grant the motion for default
judgment and award damages in the sum of $6,440.00.

The Clerk of

Court is respectfully directed to enter final judgment in favor of
plaintiff and to terminate the motion pending at docket entry 17.
SO ORDERED.
DATED:

New York, New York
October 14, 2020

NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
7