Simhaq v. Kid Carter Touring, Inc.

Ali Simhaq, Plaintiff, v. Kid Carter Touring, Inc. and Aaron Carter, Defendants.

No. 20-CV-2057 (RPK) (RER)

United States District Court, E.D. New York

August 11, 2021

REPORT &RECOMMENDATION

RAMON E. REYES, JR., U.S.M.J.^[1]

To The Honorable Rachel P. Kovner United States District Judge

On May 6, 2020, Plaintiff Ali Simhaq (“Simhaq” or “Plaintiff”), brought this copyright infringement action against defendants Aaron Carter (“Carter”) and Kid Carter Touring, Inc. (“Kid Carter Touring”) (collectively, “Defendants”) pursuant to the Copyright Act, 17 U.S.C. § 501, and the Digital Millennium Copyright Act (the “DMCA”), 17 U.S.C. § 1202(b). (Dkt. No. 1 (“Compl.”) ¶¶ 18-22, 23-25). Currently before the Court is Plaintiff's motion for a default judgment, (Dkt. No. 14 (“Pl.'s Mot.”), which Your Honor referred to me for a report and recommendation, (Order dated 2/18/2021). For the reasons discussed below, I respectfully recommend that Plaintiff's motion for default judgment be granted and that Plaintiff be awarded $1, 325 in actual damages, $5 000 in statutory damages, $895 in attorney's fees and costs, and postjudgment interest.

BACKGROUND

Plaintiff a professional artist from the Maldives, ^[2] created a painting of a “cosmic lion” (the “Painting”) that was first published on or about May 10, 2014. (Compl. ¶¶ 5, 8; Dkt. No. 16 (“Simhaq Decl.”) ¶ 4). At the bottom center of the Painting, Plaintiff included his watermark. (Compl., Ex. A; see Compl. ¶ 9).

Carter is the president of Kid Carter Touring. Registration Form, CALIF. SEC'Y OF STATE, https7/businesssearchsosea₁gov/Document/RetrievePDF7Id=03917623-20894527 (last visited August 9, 2021). Plaintiff alleges that Defendants each own and operate Carter's Instagram account and merchandise websites (collectively, “websites”).^[3] (Compl. ¶¶ 6-7).

In September 2019, Defendants allegedly removed Plaintiff's watermark and posted the Painting on Defendants' websites to endorse merchandise without Plaintiff's permission. (Compl. ¶¶ 12, 14, 17). Defendants' post of the Painting garnered about 15, 000 “likes” on Instagram before it was removed. (Id. ¶ 13).

Plaintiff confronted Defendants via social media to inform Carter that he created the Painting and did not give permission to Defendants to post the image. (Compl. ¶ 14; Compl., Ex. C). In response, Carter posted on several of his own social media accounts profane statements about Plaintiff and his work.^[4] (Compl., Ex. C). After this interaction, Plaintiff registered the Painting with the United States Copyright Office and brought suit. (Simhaq Decl., Ex. B; Compl.).

Plaintiff alleges that Defendants infringed upon his copyright pursuant to the Copyright Act and violated § 1202(b) of the DMCA by removing Plaintiff's watermark from the Painting. (Compl. ¶¶ 19, 24-25). Plaintiff seeks actual and statutory damages as well as attorney's fees and costs, and post-judgment interest. (Compl. at 5-6; Dkt. No. 14 (“Pl.'s Mot.”) at 1-2). Defendants were served with the Summons and Complaint on May 12, 2020, ^[5] (Dkt. Nos. 7-8), but failed to answer or otherwise to the Complaint within twenty-one days. Accordingly, the Clerk of Court entered default, (Dkt. No. 10), and Plaintiff subsequently moved for entry of default judgment, ^[6](Pl.'s Mot.). Your Honor then referred Plaintiff's motion to me for a report and recommendation. (Order dated 2/18/2021).

LEGAL STANDARD

“Pursuant to Rule 55 of the Federal Rules of Civil Procedure, there is a ‘two-step process' for the entry of judgment against a party who fails to defend: first, the entry of a default by the [c]lerk of [c]ourt, and second, the entry of a default judgment.” Double Green Produce, Inc. v. F. Supermarket Inc., 387 F.Supp.3d 260, 265 (E.D.N.Y. 2019) (quoting City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 128 (2d Cir. 2011)). The initial step formally recognizes that a defendant has admitted to the alleged facts through its failure to defend the action. Mickalis Pawn Shop, 645 F.3d at 128. The second step, entry of a default judgment, is a final order, thereby ending the litigation process and granting the plaintiff relief. Id.

In considering default judgment, a district court “is required to accept all of the [plaintiff's] factual allegations as true and draw all reasonable inferences in its favor.” Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (citing Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)). However, “a district court need not agree that the alleged facts constitute a valid cause of action.” Mickalis Pawn Shop, 645 F.3d at 137 (quoting Au Bon Pain, 653 F.2d at 65). Therefore, after examining the facts, the district court must make a conclusion as to liability. Finkel, 577 F.3d at 84. Additionally, the court does not accept as true allegations about damages. Mickalis Pawn Shop, 645 F.3d at 128. Rather, it is the court's responsibility to determine that damages have an evidentiary basis. Cement and Concrete Workers Dist. Council Welfare Fund v. Metro Foundation Contractors, Inc., 699 F.3d 230, 234 (2d Cir. 2012); see also Fed.R.Civ.P. 55(b)(2). To make this determination, the court may hold a hearing or rely on affidavits and other documentary evidence submitted by the plaintiff. Fustok v. ContiCommodity Services, Inc., 873 F.2d 38, 40 (2d Cir. 1989).

DISCUSSION

I. Liability

Plaintiff brings this action against Defendants for copyright infringement and for removing Plaintiff's signature from his painting and posting is artwork to their websites without permission. (Compl. ¶¶ 1, 12).

A. Plaintiff Established Defendants' Liability Under The Copyright Act.

To establish copyright infringement, a plaintiff must prove “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).

Regarding the first element, “a certificate of registration from the United States Register of Copyrights constitutes prima facie evidence of the valid ownership of a copyright” so long as it is registered within five years of the first publication of the work. PaySys Int'l, Inc. v. Atos Se, Worldline SA, Atos IT Servs. Ltd., 226 F.Supp.3d 206, 215 (S.D.N.Y. 2016) (quoting Hamil Am. Inc. v. GFI, 193 F.3d 92, 98 (2d Cir. 1999)); see also MerchDirect LLC v. Cloud Warmer, Inc., No. 17-CV-4860 (RRM) (ARL), 2019 WL 4918044, at *7 (E.D.N.Y. Sept. 30, 2019); 17 U.S.C. § 410(c).

Although Plaintiff provided a certificate of registration under the seal of the Copyright Office, Plaintiff's certificate was not effective until November 4, 2019, just over five years after its first publication on May 10, 2014. (Simhaq Decl., Ex. B). Because registration was not timely, this Court has discretion over how much evidentiary weight to give to the registration certificate. See Telerate Sys., Inc v. Caro, 689 F.Supp. 221, 227 (S.D.N.Y. 1988). However, because Defendants have failed to offer evidence showing that the certificate of registration is invalid, Plaintiff sufficiently established his valid ownership of the copyright. See Michael Grecco Photography, Inc. v. Everett Collection, Inc., 589 F.Supp.2d 375, 382 (S.D.N.Y. 2008) (considering certificate of registration issued more than five years after publication prima facie evidence of valid copyrights because defendant did not offer evidence suggesting invalidity), vacated in part on other grounds, 2009 WL 969928 (Apr. 7, 2009); Yurman Design, Inc. v. Golden Treasure Imps., Inc., 275 F.Supp.2d 506, 515-16 (S.D.N.Y. 2003) (same); Telerate Sys., 689 F.Supp. at 227 n. 7 (“Even if the certificate were . . . issued more than five years after the actual date of first publication, the court would be inclined to give the certificate the weight of prima facie evidence, as permitted under Section 410(c).”).

Under the second element, the copying of constituent elements of original work, “a plaintiff must allege a violation of the exclusive rights provided to a copyright owner under 17 U.S.C. § 106 and must meet a minimal burden to establish the work is original.” Korzeniewski v. Sapa Pho Vietnamese Rest. Inc., No. 17-CV-5721 (MKB) (SJB), 2019 WL 312149, at *6 (E.D.N.Y. Jan. 3, 2019), adopted by 2019 WL 291145 (Jan. 23, 2019). Plaintiff contends that Defendants violated his exclusive rights to his Painting by posting the image to numerous social media accounts without permission. (Compl. ¶¶ 14, 17). To support this assertion, Plaintiff provides the Court with screenshots of Defendants' Instagram account displaying the Painting and of their subsequent online communications, demonstrating that Plaintiff did not consent to Defendants' use of the Painting. (Compl., Exs. B-C). These screenshots are sufficient to show that Defendants copied Plaintiff's work. See Reilly v. Plot Commerce, No. 15 Civ. 5118 (PAE) (BCM), 2016 U.S. Dist. LEXIS 152154, at *12, 16 n.7 (S.D.N.Y. Oct. 31, 2016) (holding that screenshots were sufficient to show that defendant displayed plaintiff's photograph on website without permission), adopted by 2016 U.S. Dist. LEXIS 160884 (Nov. 21, 2016); see alsoKorzeniewski2019 WL 312149, at *6.

Finally originality applies to work that has been “independently created by its author, . . . and . . . comes from the exercise of the creative powers of the author's mind.” Dermansky v. Tel. Media, LLC, No. 19-CV-1149 (PKC) (PK), 2020 WL 1233943, at *3 (E.D.N.Y. Mar. 13, 2020) (quoting Boisson v. Banian. Ltd., 273 F.3d 262, 268 (2d Cir. 2001)); see also Sheldon v. Plot Com., No. 15-CV-5885 (CBA) (CLP), 2016 WL 5107072, at *11 (E.D.N.Y. Aug. 26, 2016), adopted by 2016 WL 5107058 (Sept. 19, 2016). Because Plaintiff asserts in his complaint that he is the creator of the Painting, (Simhaq Decl. ¶ 3), he has...