Barba v. Joy Travel (NY) Inc.

DAN BARBA, Plaintiff, v. JOY TRAVEL (NY) INC., Defendant.

No. 19 CV 6958 (RPK) (CLP)

United States District Court, E.D. New York

August 4, 2021

REPORT AND RECOMMENDATION

Cheryl L. Pollak, Chief United States Magistrate Judge.

On December 12, 2019, plaintiff Dan Barba commenced this action against defendant Joy Travel (NY) Inc. (“Joy Travel”), alleging violations of the Copyright Act, 17 U.S.C. § 101, et seq., arising out of Joy Travel's unauthorized reproduction and public display of a copyrighted photograph of parasailing in Seattle, which photograph was owned and registered by plaintiff Barba.

When defendant Joy Travel failed to answer or respond to the Summons and Complaint in this action, the Clerk of Court entered a default against the defendant on February 12, 2020. Currently pending before this Court on referral from the district judge is plaintiff's motion for default judgment.

For the reasons set forth below, it is respectfully recommended that plaintiff be awarded $1, 355.00 in compensatory damages and $440 in fees and costs.

FACTUAL BACKGROUND

Plaintiff alleges that he is a professional photographer who licenses his photographs for a fee. (Compl.^[1] ¶ 5). Plaintiff's principal place of business is located at 19337 SW 65th Street, Pembroke Pines, Florida 33332. (Id.) Defendant Joy Travel is alleged to be a corporation organized and existing under the laws of the State of New York, with its place of business located at 39-10 Main Street, #203 Flushing, N.Y. 11354. (Id. ¶ 6). According to the Complaint, Joy Travel operates a website at the URL www.JoyTrav.com (“defendant's website”). (Id.)

Plaintiff alleges that he photographed parasailing in Seattle and he has attached a copy of the subject photograph (the “Photograph”) to his Complaint as Exhibit A (Id. ¶ 7). Plaintiff registered the Photograph with the United States Copyright Office and was given registration number VA 2-179-511. (Id. ¶ 10). Plaintiff claims that he is the sole owner of all right title, and interest in the Photograph. (Id. ¶ 8).^[2]

According to the Complaint, defendant Joy Travel ran the Photograph on defendant's website to promote a trip to Seattle. (Id. ¶ 11, Ex. B (https://www.joytrav.com/32789.html)). Plaintiff alleges that Joy Travel did not license the Photograph for use on its website, nor did it obtain plaintiff's permission or consent to publish the Photograph. (Id. ¶ 12). Plaintiff brings a claim for willful and intentional copyright infringement, pursuant to 17 U.S.C. §§ 106 and 501, seeking damages and defendant's profits. (Id. ¶¶ 15-18; see 17 U.S.C. § 504(b)).

DISCUSSION

I. Default Judgment

A. Legal Standard

Rule 55 of the Federal Rules of Civil Procedure sets forth a two-step process for entry of a default judgment. See Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95-96 (2d Cir. 1993). First, the Clerk of Court enters the default pursuant to Rule 55(a) by notation of the party's default on the Clerk's record of the case. See id.; see also Fed R. Civ. P. 55(a) (providing that “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default”). Second, after the Clerk of Court enters a default against a party, if that party fails to appear or otherwise move to set aside the default pursuant to Rule 55(c), the court may enter a default judgment. See Fed.R.Civ.P. 55(b). The Clerk of the Court entered a default against defendant on February 12, 2020. To date, defendant has not moved to vacate the default judgement.

Providing guidance as to when a default judgment is appropriate, the Second Circuit has cautioned that since a default judgment is an extreme remedy, it should only be entered as a last resort. See Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981). While the Second Circuit has recognized the “push on a trial court to dispose of cases that, in disregard of the rules, are not processed expeditiously [and] . . . delay and clog its calendar, ” it has held that the district court must balance that interest with its responsibility to “[afford] litigants a reasonable chance to be heard.” Enron Oil Corp. v. Diakuhara, 10 F.3d at 95-96. Thus, in light of the “oft-stated preference for resolving disputes on the merits, ” default judgments are “generally disfavored” and doubts should be resolved in favor of the defaulting party. Id. Accordingly, the plaintiff is not entitled to a default judgment as a matter of right simply because a party is in default. See Erwin DeMarino Trucking Co. v. Jackson, 838 F.Supp. 160, 162 (S.D.N.Y. 1993) (noting that courts must “supervise default judgments with extreme care to avoid miscarriages of justice”).

The Court has significant discretion to consider a number of factors in deciding whether to grant a default judgment, including (1) whether the grounds for default are clearly established; (2) whether the claims were adequately pleaded in the Complaint, thereby placing the defendant on notice, see Fed.R.Civ.P. 54(c) (stating: “[a] default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings”); King v. STL Consulting LLC, No. 05 CV 2719, 2006 WL 3335115, at *4-5 (E.D.N.Y. Oct. 3, 2006) (holding that Rule 54(c) is not violated in awarding damages that accrued during the pendency of a litigation, so long as the complaint put the defendant on notice that the plaintiff may seek such damages); and (3) the amount of money potentially involved. See Hirsch v. Innovation Int'l, Inc., No. 91 CV 4130, 1992 WL 316143, at *2 (S.D.N.Y. Oct. 19, 1992). The more money involved, the less justification for entering the default judgment. Id. Additionally, the Court may consider whether material issues of fact remain, whether the facts alleged in the complaint state a valid cause of action, whether plaintiff has been substantially prejudiced by the delay involved, and whether the default judgment might have a harsh effect on the defendant. See Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981).

B. Entry of Default Judgment

Plaintiff alleges a violation of the Copyright Act, 17 U.S.C. §§ 101, et seq. The Copyright Act is the principal statute protecting against copyright infringement. The goal of copyright protection is to “encourage the creator of an original work in a medium of expression . . . by giving the creator the exclusive right ‘to reproduce' the work, ‘to prepare derivative works,' ‘to distribute copies or phonorecords,' ‘to perform' the work, and ‘to display' the work.” Warner Bros., Inc. v. Dae Rim Trading, Inc., 677 F.Supp. 740, 760 (S.D.N.Y. 1988) (quoting 17 U.S.C. § 106). Although the word “counterfeit” never appears in the Act, Section 501(a) of the Copyright Act proscribes the unauthorized reproduction and copying of works of an owner holding an exclusive copyright in an original work of authorship. 17 U.S.C. §§ 501(a), 102; see Fitzgerald Publ'g Co. v. Baylor Publ'g Co., 807 F.2d 1110, 1113 (2d Cir. 1986).

“Copying” means “‘the infringing of any of the copyright owner's five exclusive rights, described at 17 U.S.C. § 106.'” Microsoft Corp. v. Harmony Computers & Elecs., Inc., 846 F.Supp. 208, 210 (E.D.N.Y. 1994) (quoting S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1085 n. 3 (9th Cir. 1989)). Among the rights conferred upon the holder of a copyright are the exclusive rights to engage in and to authorize the reproduction of the copyrighted work in copies, 17 U.S.C. § 106(1), to prepare derivative works based on the copyrighted work, 17 U.S.C. § 106(2), and to distribute copies of the copyrighted work to the public by sale, rental, lease, or other transfer of ownership. 17 U.S.C. § 106(3). See Microsoft Corp. v. Harmony Computers & Elecs., Inc., 846 F.Supp. at 210-11.

It is well established that in order to prove the elements of a copyright infringement action, a plaintiff must show: (1) ownership of a valid copyright, and (2) that defendant violated one of the exclusive rights held by the plaintiff in the work. Sony Music Entertainment, Inc. v. Does 1-40, 326 F.Supp.2d 556, 565 (S.D.N.Y. 2004) (quotation marks and citations omitted); see also Capitol Records, LLC v. ReDigi, Inc., No. 12 CV 95, 2013 WL 1286134, at *4 (S.D.N.Y. March 30, 2013); Psihoyos v. Pearson Educ., Inc., 855 F.Supp.2d 103, 116 (S.D.N.Y. 2012) (citation omitted); Zappa v. Rykodisc, Inc., 819 F.Supp.2d 307, 315 (S.D.N.Y. 2011); Pearson Educ., Inc. v. Kumar, 721 F.Supp.2d 166, 175 (S.D.N.Y. 2010) (citations omitted). Under the Act, “[a]nyone who violates any of the exclusive rights of the copyright owner as provided by section 106 through 122 . . . is an infringer of the copyright or right of the author, as the case may be.” 17 U.S.C. § 501. Thus, “[t]o establish infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991) (citing Harper & Row Publishers, Inc. v. National Enterprises, 471 U.S. 539, 548 (1985)).

Turning to the first element required to establish a claim for infringement, the Copyright Act provides that “a certificate of [copyright] registration made before or within five years after first publication of the work shall constitute evidence of the validity of the copyright.” 17 U.S.C. § 410(c); see also CJ Prod. LLC v. Snuggly Plushez LLC, 809 F.Supp.2d 127, 142 (E.D.N.Y. 2011); Yurman Design, Inc. v. Golden Treasure Imports Inc., 275 F.Supp.2d 506, 514 (S.D.N.Y. 2003). While the presumption of validity is rebuttable, see Fonar Corp. v. Domenick, 105 F.3d 99, 104 (2d Cir.), cert. denied, 522 U.S. 908 (1997); Folio Impressions, Inc. v. Byer Cal., ...