Big Daddy Games LLC v. Leja Distributing Inc

Filing 287

ORDER signed by Chief Judge William C Griesbach on 7-29-16 granting 281 Motion for Default Judgment. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BIG DADDY GAMES, LLC,
Plaintiff,
v.

Case No. 13-C-1430

LEJA DISTRIBUTING, INC., et al.,
Defendants.

ORDER GRANTING DEFAULT JUDGMENT

In this copyright action, Big Daddy Games, LLC sued Leja Distributing, Inc. and several
other defendants for infringement. It now moves for default judgment against five defendants who
have failed to answer. For the reasons given below, the motion will be granted.
It is clear that the Plaintiff is entitled to judgment against the defendants in question. They
have failed to respond and the clerk has already entered a default. The question now is what
damages are appropriate. The Defendants in this action were distributors and end-users of machines
built by Reel Spin Studios, and those machines infringed on the Plaintiff’s copyrights. In June 2013
Reel Spin Studios’ attorney sent cease-and-desist letters to the defendants, and the fourth amended
complaint alleges that the Defendants’ conduct was willful.
Given the Defendants’ failure to respond, the nature of their infringing activities are less than
perfectly clear. However, the Plaintiff has amassed the following information:

!

Defendant Brian Rowe purchased three Reel Spin boards for $1,550 apiece in April
2013. (ECF No. 282-4.)

!

Defendant Kono Investments leased two infringing games from Reel Spin.

(ECF

No. 282-1, ¶ 3.)
!

Defendant SOS Marketing leased two devices produced by Reel Spin. (ECF No.
282-1, ¶ 4.)

!

Defendant JW Vending purchased an unknown number of infringing devices

!

Defendant Mark Clark purchased 19 infringing devices

District courts enjoy wide discretion in awarding fees and may consider various factors such
as “the difficulty or impossibility of proving actual damages, the circumstances of the infringement,
and the efficacy of the damages as a deterrent to future copyright infringement.” Chi-Boy Music v.
Charlie Club, Inc., 930 F.2d 1224, 1229 (7th Cir. 1991). “[W]hen the infringement is willful, the
statutory damages award may be designed to penalize the infringer and to deter future violations.”
Id. Here, given the default judgment, the allegations of the complaint are taken as true and a finding
of wilfulness is therefore warranted. Scholz Design, Inc. v. Campbell Signature Homes, LLC, No.
08-1087, 2009 WL 383430, at *2 (C.D. Ill. Feb. 12, 2009) (“the Court finds that Campbell's
copyright infringement was knowing, willful and intentional, because Scholz made this allegation
in its Complaint.”); Kinsey v. Jambow, Ltd., 76 F. Supp. 3d 708, 712 (N.D. Ill. 2014) (same).
Under 17 U.S.C. § 504(c)(2), statutory damages of up to $150,000 per infringement are
available.

The complaint alleges that each of the Defendants infringed three of the Plaintiff’s

copyrighted games. Accordingly, the Plaintiff seeks $450,000 in statutory damages against each
of the defaulting Defendants.

Given the finding of willful infringement, the question of statutory
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damages is more about deterrence and penalizing the infringers than it is about making the Plaintiff
whole for lost royalties or profits. Chi-Boy Music, 930 F.2d at 1229. Since the machines in
question sold for only $1,550 (in the case of one defendant), and since the defendants are primarily
taverns or individuals, the full amount sought by the Plaintiff ($450,000 against each defendant) is
wildly out of scale. Instead, I conclude that an award of $15,000, which is roughly ten times the
value of an infringing device, will suffice to deter future infringement and will more than make the
Plaintiff whole for any losses it sustained. In the case of Defendant Clark, who purchased more
infringing devices than any other, the award will be doubled to $30,000.
Accordingly, the motion for default judgment is GRANTED. When the case concludes,
judgment will be entered against Defendant Clark in the amount of $30,000, and against Defendants
Rowe, Kono Investments, SOS Marketing, and JW Vending in the amount of $15,000 each.

SO ORDERED this 29th day of July, 2016.

/s William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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