Opinion
19-CV-7492 (PGG) (OTW)
10-26-2020
JUSTIN GREEN, Plaintiff, v. AKONIK LABEL GROUP LLC, Defendant.
HON. PAUL G. GARDEPHE, UNITES STATES DISTRICT JUDGE:
REPORT & RECOMMENDATION
ONA T. WANG, UNITED STATES MAGISTRATE JUDGE:
Plaintiff Justin Green, a photographer, seeks recovery of damages from Defendant Akonik Label Group LLC (“Akonik”). On February 24, 2020, Plaintiff obtained a default judgment from Defendant on its claim of copyright infringement under the Copyright Act, 17 U.S.C. §§ 106, 501. (ECF 24). Plaintiff seeks statutory damages in the amount of $30,000, attorneys' fees totaling $1,912.50, and costs totaling $440. (ECF 26). For the foregoing reasons, I recommend that Plaintiff be awarded $800 in statutory damages, $1,912.50 in attorney's fees, and $440 in costs, for a total award of $3,152.50.
I. Background
Plaintiff is the photographer and copyright owner of a photo of a South African flower (the “Photograph”). (ECF 26 ¶¶ 4-6). Defendant posted the Photograph to its Twitter account in May 2017 (ECF 27-3) and to its Instagram account (ECF 27-4, undated). The Twitter and Instagram accounts are under the verified account of Akon, a singer-songwriter. (ECF 27-3, ECF-4).
In August 11, 2019, Plaintiff filed the instant suit for copyright infringement, violations of 17 U.S.C. §§ 106, 501. (ECF 1). Plaintiff is represented by Richard Liebowitz, Esq. of the Liebowitz Law Firm. Plaintiff served Akonik on September 9, 2019, and Akonik's answer was due by September 30, 2019. (ECF 7). To date, Akonik has neither responded to the complaint nor appeared in the action. Plaintiff obtained the Clerk's Certificate of Default on December 2, 2019. On January 21, 2020, the District Court issued an order to show cause by hearing on February 19, 2020 for default judgment. (ECF 18). After being served with the order to show cause, Akonik did not appear at the hearing. (ECF 24). On February 22, 2020, the District Court entered a default judgment against Defendant and referred this matter to me for an inquest into damages. (ECF 24).
Mr. Liebowitz “started filing copyright cases in this District in 2017. Since that time, he has filed more cases in this District than any other lawyer .... [i]n that same period, he has earned another dubious distinction: He has become one of the most frequently sanctioned lawyers, if not the most frequently sanctioned lawyer, in the District.” (ECF 29 at 1 (Usherson v. Bandshell Artist Mgmt., No. 19-CV-6368 (JMF), 2020 WL 3483661, at *1 (S.D.N.Y. June 26, 2020), on appeal)). Mr. Liebowitz's conduct includes “repeated violations of court orders and outright dishonestly, sometimes under oath.” Id. (collecting cases).
II. Analysis
A. Copyright Act Statutory Damages
i. Underlying law
Plaintiff requests the full amount of statutory damages allowable under the Copyright Act, as well as attorneys' fees and costs. (ECF 26). The Copyright Act provides for statutory damages as follows:
[T]he copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more
than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.17 U.S.C. § 504(c)(1) (emphasis added). Moreover, “[i]n a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000.” Id. § 504(c)(2). “In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.” Id.
Courts determining statutory damages pursuant to § 504(c) consider the following factors: (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 cooperation in providing evidence concerning the value of the infringing material; and (6) the conduct and attitude of the parties. See Bryant v. Media Rights Prods., Inc., 603 F.3d 135, 144 (2d Cir. 2010); see also Prokos v. Grossman, No. 19-CV-4028 (BMC), 2020 WL 729761, at *2 (E.D.N.Y. Feb. 13, 2020) (quoting Bryant) (same). “Plaintiff gets the benefit of the doubt in applying these factors because [Defendant]'s default makes it difficult for [it] to obtain discovery showing [Defendant]'s finances.” Prokos, 2020 WL 729761, at *2.
In the default context, “it is obviously incumbent upon the plaintiff to submit a record sufficient to support the amount of statutory damages that he is seeking.” Seelie v. Original Media Grp. LLC, No. 19-CV-5643 (BMC), 2020 WL 136659, at *2 (E.D.N.Y. Jan. 13, 2020). Even accounting for the difficulties in evidence because of the defendant's failure to appear, the “plaintiff still has the ability-and the responsibility-to present some minimal amount of evidence in support of [its] damages request.” Lowery v. Fire Talk LLC, No. 19-CV-3737 (LDH) (RER) 2020 WL 5441785, at *3 (June 29, 2020), report and recommendation adopted, 2020 WL 5425768 (E.D.N.Y. Sept. 10, 2020).
ii. Plaintiff has failed to present evidence meriting the maximum amount of statutory damages
Plaintiff argues that he should be awarded the maximum statutory damages amount of $30,000 under the Copyright Act, because that amount is consistent with cases in this Circuit in which defendants have defaulted in copyright infringement actions. (ECF 26 at 8). Plaintiff also contends that the Court need not consider evidence of Plaintiff's actual losses. (ECF 26-11 (“Plaintiff respectfully and in good faith declines to submit evidence of any actual damages suffered as a result of the infringement.”)).
Plaintiff has failed to present any evidence to the first, second, third, and sixth factors.
Regarding the first factor, willfulness, Plaintiff argues that the Court should infer willfulness from Defendant's failure to appear. See Chloe v. Zarafshan, No. 06-CV-3140 (RJH) (MHD), 2009 WL 2956827, at *7 (S.D.N.Y. Sept. 15, 2009) (“Willfulness may be established by a party's default because an innocent party would presumably have made an effort to defend itself.”). The Court acknowledges difficulties presenting evidence of this nature when one party defaults, and, accordingly, consistent with other cases, there is an inference of willfulness, albeit a weak one. See Seelie, 2020 WL 136659, at *4 (Mr. Liebowitz, representing another plaintiff, presented evidence that the defendant was a publisher that should be familiar with copyright laws).
Regarding the second and third factors, evidence of Plaintiff's losses or Defendant's gains, Plaintiff has intentionally declined to offer any such evidence. (ECF 26-11). This Court and many others ruling against Mr. Liebowitz “reject the notion that it need not consider evidence of actual losses or licensing fees in assessing appropriate statutory damages.” Dermansky v. Telegraph Media, LLC, No. 19-CV-1149 (PKC) (PK), 2020 WL 1233943, at *5 (E.D.N.Y. Mar. 13, 2020); see also Idir v. La Calle TV, LLC, No. 19-CV-6251 (JGK), 2020 WL 4016425, at *3 (S.D.N.Y. July 15, 2020); Seelie, 2020 WL 136659, at *6; Mantel v. Smash.com Inc., No. 18-CV-6113 (FPG), 2019 WL 5257571, at *3 (W.D.N.Y. Oct. 17, 2019). I could continue to cite cases against Mr. Liebowitz on this issue, but the point has been made. All those cases awarded well under the requested statutory maximum: Idir, 2020 WL 4016425 at *5 (award of $2,500 in statutory damages); Lowery, 2020 WL 5441785 at *5 (award of $750 in statutory damages); Dermansky, 2020 WL 1233943 at *6 (award of $1,000 in statutory damages); Seelie, 2020 WL 136659 at *6 (award of $5,000 in statutory damages); Mantal, 2019 WL 5257571 (award of $5,000 in statutory damages).
Plaintiff has only proffered evidence (and very little at that) to the fourth, fifth, and sixth factors.
With regard to the fourth factor, Plaintiff supplies no specific evidence of deterrence, but rather only cites caselaw about the general deterrence function of statutory damages. Further, the fifth factor, the infringer's cooperation, weighs in Plaintiff's favor simply by virtue of Defendant's default. With regard to the sixth factor, the conduct and attitude of parties, Plaintiff has supplied no evidence beyond that Defendant posted the Photograph and defaulted.
In the cases that have awarded the maximum amount of statutory damages, “there is additional evidence of willfulness and allegations of actual awareness of the part of the defendants of their infringing activity; there is usually at least one cease-and-desist letter sent to the defendant, and frequently, requests for injunctive relief.” Dermansky, 2020 WL 1233943 at *5 (collecting cases). In cases such as this, where Mr. Liebowitz “has provided no evidence of any cease-and-desist letter and has not made any request for injunctive relief” and “no evidence of any actual harm” the full award of statutory damages in inappropriate. Idir, 2020 WL 4016425 at *3; Dermansky, 2020 WL 1233943 at *6. Mr. Liebowitz's cherry-picking of cases that have awarded the full amount of statutory damages does Plaintiff no benefit because counsel fails to mention all the cases where plaintiffs have received “mere hundreds of dollars in statutory damages.” Seelie, 2020 WL 136659 at *5. All the evidence and lack thereof leads to the conclusion that the infringing conduct was de minimis.
Additionally, awarding the full amount of statutory damages is particularly inappropriate given that by the time Plaintiff filed his inquest papers, his counsel was on notice that courts declined to award full statutory damages unless plaintiff provided additional evidence. See, e.g., Seelie, 2020 WL 136659 (issued January 13, 2020). And, since the filing, additional decisions have issued awarding only de minimis damages in light of the threadbare evidence provided by Mr. Liebowitz, and Plaintiff could have supplemented his papers in response. Accordingly, I recommend that the amount of statutory damages to be awarded is $800, an amount above the statutory minimum to encourage deterrence, but less than the statutory maximum given the lack of almost any evidence.
B. Attorney's Fees
“The presumptively reasonable fee[] boils down to what a reasonable, paying client would be willing to pay, given that such a party wishes to spend the minimum necessary to litigate the case effectively.” Simmons v. N.Y.C. Transit. Auth., 575 F.3d 170, 174 (2d Cir. 2009) (internal quotations omitted). The total fee award is calculated by multiplying this presumptively reasonable fee by the “reasonable number of hours expended” to determine the appropriate award. Porzig v. Dresdner, Kleinwort, Benson, N. Am. LLC, 497 F.3d 133, 141 (2d Cir. 2007). The rate to be set for an attorney is “what a reasonable, paying client would be willing to pay.” Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cty. of Albany, 522 F.3d 182, 184 (2d Cir. 2008). The rate must be “in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Reiter v. MTA N.Y.C. Transit Auth., 457 F.3d 224, 232 (2d Cir. 2006) (alteration in original and internal quotation marks omitted) (quoting Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984)). A court is called upon to determine the “cheapest hourly rate an effective attorney would have charged.” O.R. v. N.Y.C. Dep't of Educ., 340 F.Supp.3d 357, 364 (S.D.N.Y. 2018) (emphasis in original).
In support of his application for attorney's fees, Mr. Liebowitz submitted a statement of fees showing the date on which the services were performed, the hours expended, and a description of the services completed. (ECF 15). Plaintiff requests $1,912.50 in attorney's fees, reflecting 4.5 hours of work at $425 per hour. (ECF 15 at 5). The Court finds that the claimed hours and fee are reasonable. See Idir, 2020 WL 4016425 at *4 (approving $425 rate as commensurate with rates in the District, and awarding fees for seven hours of work).
Plaintiff further requests $440 in costs reflecting $400 in court filing fees and $40 for service fees on the Georgia Secretary of State. (ECF 15 at 5). The Court finds that this claimed amount is reasonable. See Idir, 2020 WL 4016425 at *4 (approving $440 in costs).
Accordingly, I recommend that that Plaintiff be awarded $1,912.50 for attorney's fees and $440 in costs.
The fee and cost recovery here is over twice the statutory damages award for a relatively straightforward case. However, because Mr. Liebowitz did not charge for any time after filing for the proposed default judgment, i.e. not requesting fees for the inquest papers, I find the requested fee recovery for 4.5 hours of work reasonable. (ECF 15 at 5).
III. Conclusion
For the reasons stated above, I recommend that Plaintiff be awarded $800 in statutory damages, $1,912.50 in attorney's fees, and $440 in costs, for a total award of $3,152.50. The judgment should accrue post-judgment interest pursuant to 28 U.S.C. § 1961.
IV. Objections
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days (including weekends and holidays) from service of this Report to file written objections. See also Fed.R.Civ.P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be addressed to the Honorable Paul G. Gardephe, United States District Judge. Any requests for an extension of time for filing objections must also be directed to Judge Gardephe.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
Plaintiff is directed to mail a copy of this Report and Recommendation to the Defendant, and file proof of service on the docket within seven days.