Joe Hand Promotions, Inc. v. Infante et al
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
JOE HAND PROMOTIONS, INC.,
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.
MOFONGO EL MOCANO RESTAURNT AND LOUNGE
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
On February 25, 2020, plaintiff Joe Hand Promotions, Inc.
(“Infante”) and Mofongo el Mocano Restaurant and Lounge Corp.
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.
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,
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.
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.
For an established violation of the Copyright Act, a court
may award a plaintiff statutory damages of “not less than $750 or
willfully,” the Court may, in its discretion, increase the award
of statutory damages up to $150,000.
Id. § 504(c)(2).
defendant's knowledge that its actions constitute an infringement
willfully” within the meaning of the Act.
Co., Inc. v. Baylor Publishing Co., Inc., 807 F.2d 1110, 1115 (2d
Here, plaintiff claims $5,000 in statutory damages
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).
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)).
605 provides for penalties “of not less than $1,000 or more than
§ 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
willfulness, “the question for the court is whether the defendant
indifference for its requirements.”
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.”
Here, plaintiff claims the maximum amount of
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
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.
USA Inc. v. Uropa Media, Inc., No. 13 Civ. 7871, 2014 WL 2011775,
at *2 (S.D.N.Y. May 16, 2014).
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
Accordingly, plaintiff is entitled to a default judgment on its
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
Case 1:20-cv-01650-NRB Document 18 Filed 10/14/20 Page 5 of 7
the exclusive rights of distribution for the program).
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
Accordingly, plaintiff also is entitled to a default
judgment on its Communications Act claim.
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”).
willfully when they violated the Acts.
As an initial matter,
Mofongo marketed the Event to potential patrons on Instagram.
demonstration of willfulness, since signals do not descramble
spontaneously, nor do television sets connect themselves to cable
J&J Sports Prods., Inc. v. Ramirez, No. 17
(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
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”).
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
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);
circumstances, courts have awarded enhanced damages equal to three
times the amount of statutory damages.”).
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.
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.
It has, however, presented
evidence that it incurred $302.50 in costs, consisting of the
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.
New York, New York
October 14, 2020
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
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