Harrington v. Kaushan Media Corp.

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MAUREEN HARRINGTON, as personal representative for the estate of BLAINE HARRINGTON III, Plaintiff, v. KAUSHAN MEDIA CORPORATION d/b/a ALLWOMENSTALK.COM, Defendant.

No. 23-CV-03213 (JGLC) (VF)

United States District Court, S.D. New York

November 21, 2023

TO THE HONORABLE JESSICA G. L. CLARKE, UNITED STATES DISTRICT JUDGE.

REPORT AND RECOMMENDATION

VALERIE FIGUEREDO, UNITED STATES MAGISTRATE JUDGE,

On April 18, 2023, Plaintiff Maureen Harrington, as the personal representative for the estate of Blaine Harrington III commenced this copyright-infringement action against Defendant Kaushan Media Corporation, doing business as “allwomenstalk.com.” See ECF No. 1 (“Compl.”). On July 27, 2023, Plaintiff moved for entry of default judgment against Defendant. ECF No. 12. To date, Defendant has not appeared or otherwise defended against this action. For the reasons that follow, I respectfully recommend that default judgment be entered against Defendant and that Plaintiff be awarded damages as calculated below.

BACKGROUND

A. Factual Background

Harrington, who is Plaintiff's late husband, was a “well-known” travel photographer whose work was published in “major news, business and travel magazines.” Compl. ¶¶ 6-7. In 2012, Harrington created a photograph of hot air balloons flying at sunrise over the Sandia Mountains, which he took during the Albuquerque International Balloon Fiesta (the “Work”). Id. ¶ 10. On March 5, 2013, Harrington registered the Work with the United States Copyright Office. Id. ¶ 11. A copy of the Certificate of Registration is annexed to the complaint. See id. at Ex. A. Harrington is the owner of the copyright. Id. ¶¶ 12, 24.

Defendant is a digital magazine publisher specializing in women's content. Id. ¶ 13. Defendant advertises its business primarily through its website (https://allwomentalk.com/) and Facebook page. Id. ¶ 14. After the Work received its copyright registration, Defendant published the Work on its website in an article titled “Where can you find the best sunset in your state.” Id. ¶ 15. A screenshot of Defendant's website, showing the Work, is included in the complaint. See id. ¶¶ 15-16, Ex. B.

Defendant did not have a license to use or display the Work and never obtained Plaintiff's permission to use the Work in connection with Defendant's business. Id. ¶¶ 17, 19. Plaintiff discovered Defendant's use of the Work in June 2022. Id. ¶ 20. Plaintiff subsequently notified Defendant in writing of the unauthorized use. Id. Plaintiff has been unable to negotiate a reasonable license with Defendant for use of the Work.^[1] Id.

B. Procedural Background

Plaintiff commenced this action on April 18, 2023, asserting a single claim for copyright infringement under the Copyright Act, 17 U.S.C. § 501. See ECF No. 1 at ¶ 28. Plaintiff served Defendant the summons and complaint on June 7, 2023. See ECF Nos. 8-9. On July 5, 2023, the Clerk of Court entered a certificate of default against Defendant. ECF No. 11. On July 27, 2023, Plaintiff filed a motion for default judgment. ECF Nos. 12-16. To date, Defendant has never appeared in this case.

DISCUSSION

Federal Rule of Civil Procedure 55 sets forth a two-step procedure for the entry of judgment against a party who fails to defend: the entry of a default, and the entry of a default judgment. New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005). The first step, entry of a default, simply “formalizes a judicial recognition that a defendant has, through its failure to defend the action, admitted liability to the plaintiff.” City of New York v Mickalis Pawn Shop, LLC, 645 F.3d 114, 128 (2d Cir. 2011); see Fed.R.Civ.P. 55(a). The second step, entry of a default judgment, “converts the defendant's admission of liability into a final judgment that terminates the litigation and awards the plaintiff any relief to which the court decides it is entitled, to the extent permitted” by the pleadings. Mickalis Pawn Shop, 645 F.3d at 128; see also Fed.R.Civ.P. 54(b). Whether entry of default judgment at the second step is appropriate depends upon whether the allegations against the defaulting party are well-pleaded. See Mickalis Pawn Shop, 645 F.3d at 137.

“A defendant is always free to ignore the judicial proceedings [and] risk a default judgment.” Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 706 (1982). The consequence is an “admission of all well-pleaded allegations against the defaulting party.” Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004). Thus, because a party in default does not admit conclusions of law, “a district court need not agree that the alleged facts constitute a valid cause of action.” Mickalis Pawn Shop, 645 F.3d at 137. The essence of Federal Rule of Civil Procedure 55 is that a plaintiff can obtain from a default judgment relief equivalent to but not greater than it would obtain in a contested proceeding assuming it prevailed on all of its factual allegations. See Finkel v. Romanowicz, 577 F.3d 79, 85 (2d Cir. 2009); see also Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981) (“[A] district court has discretion under Rule 55(b)(2) once a default is determined to require proof of necessary facts and need not agree that the alleged facts constitute a valid cause of action.”). Therefore, the Court is “required to determine whether [Plaintiff's] allegations are sufficient to establish [Defendant's] liability as a matter of law.” Finkel, 577 F.3d at 84. “The legal sufficiency of these claims is analyzed under the familiar plausibility standard enunciated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), aided by the additional step of drawing inferences in the [non-defaulting party's] favor.” WowWee Grp. v. Meirly, No. 18-CV-706 (AJN), 2019 WL 1375470, at *5 (S.D.N.Y. Mar. 27, 2019).

“[A] plaintiff is not entitled to a default judgment and any concomitant damages as a matter of right simply by virtue of a defendant's procedural default.” Gould v. Marconi Dev. Grp., LLC, No. 19-CV-1454 (MAD/DJS), 2020 WL 2042332, at *2 (N.D.N.Y. Apr. 28, 2020) (citing 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”)).

In light of Defendant's default, I accept as true the well-pleaded allegations in the complaint, with the exception of those allegations relating to damages. See, e.g., Union of Orthodox Jewish Congregations of Am. v. Royal Food Distribs. LLC, 665 F.Supp.2d 434, 436 (S.D.N.Y. 2009) (“When the Court enters a default judgment, as regards liability it must accept as true all of the factual allegations of the complaint, but the amount of damages are not deemed true.”) (internal citations, alterations, and quotation marks omitted). As to damages, a district court must “conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999). This inquiry requires the court to: (1) “determin[e] the proper rule for calculating damages on . . . a claim,” and (2) “assess[ ] plaintiff's evidence supporting the damages to be determined under this rule.” Id.

Federal Rule of Civil Procedure 55(b)(2) “allows but does not require” the district court to conduct a hearing on the damages amount. Bricklayers and Allied Craftworkers Loc. 2, Albany, N.Y. Pension Fund v. Moulton Masonry & Const., LLC, 779 F.3d 182, 189 (2d Cir. 2015) (“[T]he court may conduct such hearings or order such references as it deems necessary and proper.”) (internal quotation marks and citation omitted); see also Cement & Concrete Workers Dist. Council Welfare Fund, Pension Fund, Annuity Fund, Educ. & Training Fund & Other Funds v. Metro Found. Contractors, Inc., 699 F.3d 230, 234 (2d Cir. 2012). Plaintiff's submissions have not been contested and the submissions provide all the information needed to determine Plaintiff's damages. As such, a hearing on Plaintiff's damages is not necessary.

A. Defendant's Liability for Copyright Infringement

Plaintiff asserts one claim of copyright infringement premised on Defendant's unauthorized use of the Work on its website. See Compl. ¶¶ 23-30. To establish copyright infringement, a plaintiff must prove “[(a)] ownership of a valid copyright, and [(b)] copying of constituent elements of the work that are original.” Clanton v. UMG Recordings, Inc., 556 F.Supp.3d 322, 327 (S.D.N.Y. 2021) (quoting Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). To prove that a defendant copied constituent elements of an original work, a plaintiff must show that “(1) the defendant has actually copied the plaintiff's work; and (2) the copying is illegal because a substantial similarity exists between the defendant's work and the protectible elements of plaintiffs” work. Id. (quoting Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1002 (2d Cir. 1995)); see also TufAmerica, Inc. v. Diamond, 968 F.Supp.2d 588, 595 (S.D.N.Y. 2013).

First, Plaintiff has established ownership of a valid copyright of the Work. “[A] certificate of registration from the United States Register of Copyrights constitutes prima facie evidence of the valid ownership of a copyright.” Ferdman v. CBS Interactive Inc. 342 F.Supp.3d 515, 524 (S.D.N.Y. 2018). Here, Harrington created the Work in 2012 and registered the Work with the United States Copyright Office on March 5, 2013. Compl. ¶¶ 10-11. Additionally, Plaintiff attached the Certificate of Registration for the Work to the complaint. Id. at Ex. A.

Second Plaintiff has established that Defendant copied the Work. Here, Plaintiff alleges that Defendant...