Opinion
23-cv-04593-NC
02-16-2024
JAMIE JOHNSON MORROW, Plaintiff, v. TRAVELADE, INC., Defendant.
FURTHER ORDER TO SHOW CAUSE RE: PLAINTIFF'S DAMAGES
RE: ECF 14
NATHANAEL M. COUSINS, UNITED STATES MAGISTRATE JUDGE
The Court previously issued an Order to Show Cause for Plaintiff to supplement her damages contentions. ECF 20. Specifically, the Court ordered additional information on (1) Plaintiff's prior rates and/or sales as a professional photographer, and (2) the parameters on Getty Images used to generate the licensing fee. Id. at 2. Plaintiff filed a response. ECF 21. However, this response, coupled with additional issues, fails to ameliorate the Court's concerns regarding Plaintiff's calculation of damages.
A plaintiff seeking default judgment “must also prove all damages sought in the complaint.” Dr. JKL Ltd. v. HPC IT Educ. Ctr., 749 F.Supp.2d 1038, 1046 (N.D. Cal. 2010). Courts are receptive to basing actual damages on licensing fee multiplier calculations. See Reiffer v. Shearwater Pac. Cap. Mgmt. LLC, No. 18-cv-06053-JSW (RMI), 2020 WL 7048307, at *7 (N.D. Cal. May 13, 2020).
The Court notes two issues Plaintiff must address. First, in response to the Court's request for additional information concerning her rates, Plaintiff states she has “no prior licenses” nor have any other potential infringement disputes been resolved. ECF 21 at 2. Without any further support, Plaintiff asserts a licensing rate on par with “the leading stock photography agency.” ECF 14-2, Declaration of Jamie Morrow (“Morrow Decl.”) ¶ 21. As stated in a similar case: “[w]hile Plaintiff may be proud of [her] own photographic accomplishments, [she] makes no showing that [she], as a relative unknown, can command fees comparable to the ‘industry leader.' ” McDermott v. El Sol Media Network, Inc., No. 22-cv-999-PGB (DAB), 2023 WL 2931277, at *4 (M.D. Fla. Feb. 8, 2023). Thus, Plaintiff must allege additional facts showing she could command a comparable price to Getty Images.
Second, Plaintiff's parameters on the Getty Images website appear unsuited for the facts of this case. Notably, Plaintiff's use of the “Advertorial” input. See Morrow Decl. ¶ 21, Ex. 2. This selection covers “[u]se in an editorial style article (any placement - print or electronic) intended to indirectly promote a product or service.” Id. Merriam-Webster defines the noun “editorial” as “a newspaper or magazine article that gives the opinions of the editors or publishers” or “an expression of opinion that resembles such an article.” Merriam-Webster, Definition of Editorial, https://www. https://www.merriam-webster.com/dictionary/editorial (last visited Feb. 16, 2024). In support of this designation, Plaintiff simply asserts “that advertorial use is appropriate as Defendant utilized the photograph to promote the sale of its trip.” ECF 21 at 2. However, Defendant's offending webpage is not an article, nor does it express any opinion. See ECF 1, Ex. 2. Therefore, Plaintiff must include additional information justifying the use of this parameter.
Based on the foregoing, Plaintiff may either file a supplemental response addressing these issues or seek leave to file an amended motion for default judgment. Plaintiff's response must be filed by February 23, 2024.
IT IS SO ORDERED.