G & G Closed Circuit Events, LLC v. Cofie et al
Filing
64
MEMORANDUM AND ORDER: For the foregoing reasons, we award damages in the amount of $5,600.00 for defendants' copyright violation, plus an additional $5,352.50 in attorneys' fees. The Clerk of the Court is respectfully directed to enter judgment in favor of plaintiff and close this case. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 11/22/2024) (sgz) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------X
G&G CLOSED CIRCUIT EVENTS, LLC,
Plaintiff,
- against -
MEMORANDUM AND ORDER
PRINCE COFIE, individually d/b/a
ADINKRA BAR & RESTAURANT and
P. COF LLC, an unknown business
entity d/b/a ADINKRA BAR & RESTAURANT,
21 Civ. 6920 (NRB)
Defendants.
---------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Plaintiff
G&G
Closed
Circuit
Events,
LLC,
the
exclusive
rights holder of a pay-per-view boxing match, brought this action
under 47 U.S.C. §§ 553 and 605 against defendants P. Cof LLC, the
owner
and
operator
of
the
Adinkra
Bar
&
Restaurant
(the
“Restaurant”), and Prince Cofie, P. Cof LLC’s principal, for
displaying the boxing match on two televisions at the Restaurant
without the requisite commercial license.
Currently before the
Court is plaintiff’s request for damages and attorneys’ fees.
See
ECF No. 59.
For the reasons below, we award plaintiff a total of
$10,952.50,
consisting
of
$5,600.00
in
statutory
damages
and
$5,352.50 in attorneys’ fees.
BACKGROUND
A. Procedural Background
On April 3, 2024, this Court granted plaintiff’s motion for
partial summary judgment on the issue of liability.
1
See ECF No.
56.
The parties provided subsequent briefing on damages and
attorneys’ fees, with plaintiff filing its opening brief on August
27,
2024,
ECF
No.
59
(“Brief”),
defendants
submitting
their
opposition on October 30, 2024, ECF No. 62 (“Opp.”), and plaintiff
providing its reply on November 6, 2024, ECF No. 63 (“Reply”).
B. Factual Background
The facts relevant to the determination of damages are as
follows.
On September 11, 2018, the Restaurant advertised on its
Facebook page that it would be broadcasting a pay-per-view boxing
match between Gennedy Golovkin and Saul Alvarez (the “match”).
See ECF No. 56 at 1.
On September 15, 2024, the Restaurant
displayed the match on two televisions to approximately fifty
paying patrons.
Id. at 6–7.
For a commercial venue like the Restaurant to lawfully show
the match, it was required to procure a sublicense from plaintiff
for a fee.
Id. at 6.
Defendants did not do this.
Id.
Instead,
Mr. Cofie ordered the match through his personal cable account and
displayed the event at his restaurant.
Id. at 6–7.
LEGAL STANDARD
Section 605 of the Communications Act protects against “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
2
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, as the court considers just” for
each violation of section 605(a), 47 U.S.C. § 605(e)(3)(c)(i)(II),
and for an additional amount not exceeding $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
governing statute and an indifference for its requirements.”
Joe
Hand Promotions, Inc. v. Levin, No. 18 Civ. 9389, 2019 WL 3050852,
at *4 (S.D.N.Y. July 12, 2019) (internal quotation marks and
citation omitted).
In addition, Section 605 directs the Court to
award “full costs,” including reasonable attorneys’ fees, “to an
aggrieved party who prevails.”
47 U.S.C. § 605(e)(3)(b)(iii).
“District courts enjoy wide discretion in setting statutory
damages.”
Castillo v. G&M Realty L.P., 950 F.3d 155, 171 (2d Cir.
2020) (citation omitted).
In the Second Circuit, courts employ
the Bryant approach “[w]hen determining the amount of statutory
damages to award for copyright infringement” and will “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
3
cooperation
in
providing
evidence concerning the value of the infringing material; and (6)
the conduct and attitude of the parties.”
Bryant v. Media Right
Productions, Inc., 603 F.3d 135, 144 (2d Cir. 2010) (citing N.A.S.
Impor. Corp. v. Chenson Enter., Inc., 968 F.2d 250, 252–53 (2d
Cir.1992)); see also 3 Melville B. Nimmer & David Nimmer, Nimmer
on Copyright § 14.04(B), at 14–41 (1991).
Overall, when awarding
statutory damages, a court should not merely seek to “compel[]
restitution of profit and reparation for injury” but should also
aim to “discourage wrongful conduct” in the future. F.W. Woolworth
Co. v. Contemporary Arts, Inc., 344 U.S. 228, 233 (1952).
DISCUSSION
A. Statutory Damages
Plaintiff asks this Court to assess damages using either a
licensing fee or per-person method.
Under the former approach,
plaintiff seeks (1) $5,600 in baseline statutory damages, which
reflects a two-times multiplier of the original $2,800 commercial
fee for the match; plus (2) enhanced statutory damages of $14,000,
or
two
and
one-half
times
statutory
purportedly willful conduct.
damages
for
See Brief at 3–4.
defendants’
Under the per-
person method, plaintiff advocates for (1) baseline statutory
damages of $5,000, which reflects a $100 fee for each of the 50
patrons estimated to be in attendance; plus (2) enhanced statutory
damages of $12,500, which is two and one-half times statutory
damage.
Brief
at
7.
Since
4
plaintiff’s
proposed
damages
calculation methods are naturally embedded in the Bryant approach,
the Court proceeds with Bryant’s multi-factor analysis.
With respect to the first Bryant factor, plaintiff has not
sufficiently established that defendants willfully infringed its
copyright.
Copyright infringement is “willful” if the plaintiff
shows “(1) that the defendant was actually aware of the infringing
activity, or (2) that the defendant’s actions were the result of
‘reckless disregard’ for, or ‘willful blindness’ to, the copyright
holder’s rights.”
Island Software & Computer Services, Inc. v.
Microsoft Corp., 413 F.3d 257, 263 (2d Cir. 2005) (citations
omitted).
A defendant’s willfulness “need not be proven directly
but may be inferred from the defendant’s conduct.”
Corp., 968 F.2d at 252.
N.A.S. Import,
Here, there is neither direct nor
circumstantial evidence of willfulness.
This entire litigation is
premised upon a “single event aired at [a] small establishment
[in] 2018, which permanently closed its doors years ago.”
3.
Opp. at
The venue itself “did not have any employees” on the date of
the violation, nor did it have any satellite service or devices
attached to its televisions.
Id. at 2.
And while the venue was
technically “in operation” at the time of the match, it “was not
open consistently” because Mr. Cofie “was an active member of the
military, and had periods of time that he was out of the country.”
Id.
Moreover, there is “zero evidence of repeated [licensing]
violations by [d]efendants,” who have “never been accused of any
5
kind of signal theft or the like by any entity.”
Id. at 2–3.
While it is true that defendants “required a $20.00 cover charge
for admission” and advertised that it would be showing the fight,
see Brief at 4, these actions do not, standing alone, show that
defendants willfully sought to flout or undermine the tenets of
the Communications Act.
Next, we turn to the second and third Bryant factors.
To the
extent possible, an award of “statutory damages should bear some
relation to actual damages suffered.”
RSO Records, Inc. v. Peri,
596 F. Supp. 849, 862 (S.D.N.Y. 1984).
It is thus common for
courts to tether a statutory damages award to the copyright owner’s
loss of the fair market value of the licensing fees.
See On Davis
v. The Gap, Inc., 246 F.3d 152, 166 (2d Cir. 2001).
Here,
defendants’ cost savings -- the inverse of plaintiff’s lost revenue
-- reflect the $2,800 commercial fee it should have paid to
lawfully obtain a sublicense for the match.
See Brief at 4.
And
while there is evidence that defendants earned at least $1,000 in
revenue
from
charging
the
approximately
fifty
patrons
in
attendance a $20 cover charge, see Brief at 4, “[d]efendants had
no profits” to show for the night, see Opp. at 4.
Next, we turn to the fourth Bryant factor.
award
statutory
damages
in
an
amount
that
will
The Court may
“further
the
Copyright Act’s dual objectives of compensating copyright owners
for
past
infringement
and
deterring
6
future
infringement.”
Getaped.com, Inc. v. Cangemi, 188 F. Supp. 2d 398, 403 (S.D.N.Y.
2002).
The Court recognizes that without consequences, others may
feel unrestrained to broadcast content in a commercial setting
without paying for a license.
In the instant case, however,
defendants’ business has shuttered, and there are “no plans to
establish a similar business in the future.”
there is no need for specific deterrence.
Opp. at 4.
Thus,
Further, the Court is
confident that its statutory damages assessment will, on its own,
further the ends of general deterrence.
Finally, both prongs five and six of the Bryant analysis cut
against a stiff damages award.
Defendants did not default, as is
frequently the approach of defendants in this type of case.
See
e.g., G&G Closed Cir. Events, LLC v. Batista, No. 20 Civ. 5073
(NRB), 2021 WL 293150, at *2 (S.D.N.Y. Jan. 28, 2021); see also
Joe Hand Prods., Inc., 2022 W1 3903596, at *3.
Rather, defendants
have fully engaged in this litigation by retaining counsel, filing
an answer, attempting settlement, and briefing motions.
See Opp.
at 5.
In consideration of the foregoing, we find a statutory damages
award of $5,600, or two times the licensing fee, to be appropriate.
See J&J Sports Prods., Inc. v. Ramirez, No. 17 CIV. 6926 (RWS),
2018 WL 1961107, at *2 (S.D.N.Y. Apr. 9, 2018) (“Doubling the
licensing fee results in more proportional damages.”).
Further,
the Court declines to award enhanced statutory damages as there is
7
insufficient evidence of willfulness.
See J & J Sports Prods.,
Inc. v. Mar Y Las Estrellas Rest. Corp, No. 17 Civ. 1190 (MKB)
(ST), 2018 WL 4583489, at *7 (E.D.N.Y. Sept. 25, 2018) (“Mar Y Las
Estrellas appears to be a small business for which statutory
damages will provide a sufficient penalty.”).
As discussed above,
there is no need here for specific deterrence, and the award is
sufficient for general deterrence.
See Joe Hand Promotions, Inc.
v. Hernandez, No. 03 Civ. 6132 (HB), 2004 WL 1488110, at *5
(S.D.N.Y. June 30, 2004) (noting in determining damages that “the
value of deterrence must be balanced against the inequity of
imposing heavy financial burdens on small businesses.
The sting
of an enhanced award should not be greater than deterrence requires
and fairness allows.”).
B. Attorneys’ Fees and Costs
Plaintiff seeks attorneys’ fees and costs in the amount of
$5,352.50.
ECF 59-3 at 3, Ex. 1.
The requested fee reflects 13.85
hours of attorney time billed at $350 per hour, id. at 4, and 5.05
hours of work done by a paralegal for a total amount of $505, id.
While “[t]here is no precise rule or formula” for determining
whether a request for attorneys’ fees is reasonable, Fogerty v.
Fantasy, Inc., 510 U.S. 517, 534 (1994), the amounts requested by
plaintiff are commensurate with the individual billing rate stated
in the declaration submitted by plaintiff’s attorneys, ECF No. 593 at ¶ 5, and the amount of work conducted in this case.
8
The Court
finds plaintiff’s fees to be reasonable.
Plaintiff may therefore
recover the full amount of its attorneys’ fees, $5,352.50, under
Section 605(e)(3)(B)(iii).
CONCLUSION
For the foregoing reasons, we award damages in the amount of
$5,600.00 for defendants’ copyright violation, plus an additional
$5,352.50
in
attorneys’
fees.
The
Clerk
of
the
Court
is
respectfully directed to enter judgment in favor of plaintiff and
close this case.
SO ORDERED.
Dated:
November 22, 2024
New York, New York
____________________________
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?