Opinion
1:22-cv-09452 (PAE) (SDA)
07-06-2023
Laurie Rubin, Plaintiff, v. Trendland LLC, Defendant.
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE PAUL A. ENGELMAYER, UNITED STATES DISTRICT JUDGE:
Plaintiff Laurie Rubin (“Plaintiff” or “Rubin”) filed this action under the Copyright Act, 17 U.S.C. § 101, et seq., after Defendant Trendland LLC (“Defendant” or “Trendland”) displayed one of Plaintiff's copyrighted photographs on its website without authorization. (See Compl., ECF No. 1, at pp. 2-3.) On April 26, 2023, the Honorable Paul A. Engelmayer issued a default judgment against Defendant and referred the action to me to conduct an inquest into damages. (See Default J., ECF No. 17; Order of Ref., ECF No. 16.) For the reasons set forth below, I respectfully recommend that Plaintiff be awarded against Defendant $17,500.00 in statutory damages under the Copyright Act; $1,942.50 in attorneys' fees; and $858.58 in costs.
The relevant facts are derived from the proposed findings of fact submitted on behalf of Plaintiff. (See Pl.'s Proposed Findings of Fact and Conclusions of Law (“Pl.'s Proposed Findings”), ECF No. 20, at pp. 2-4.)
Rubin is an experienced professional freelance photographer based in New York, New York, who creates and licenses photographic images. (Rubin Decl., ECF No. 13-1, ¶¶ 2-3; see also Compl. ¶ 2.) Trendland is a daily online news website covering and curating the latest trends in design, art, travel, fashion, photography and more located in New York, New York. (Compl. ¶¶ 3, 9.)
In 2007, Rubin created the photograph entitled “Image 070130acedining1620-088crop,” which is referred to herein as the “Work.” (Rubin Decl. ¶ 4; see also Compl. at p. 3.) Rubin registered the Work with the Register of Copyrights on April 6, 2007, and was assigned the registration number VAu 750-348. (Rubin Decl. ¶ 5 & Ex. 1.) Rubin owns all rights, including copyrights, in the photographic image asserted in this action. (Rubin Decl. ¶ 6).
On a date after the Work was created, Trendland copied the Work without Rubin's permission and used the Work on its website. (Compl. ¶ 15; Rubin Decl. ¶ 9 & Ex. 3.) Trendland never has received any permission or been licensed to use the Work. (Compl. ¶ 22; Rubin Decl. ¶ 10.) The fair market value of a rights-managed license to reproduce and display the Work on Trendland's website without attribution is $3,500.00 per year. (Rubin Decl. ¶ 13 & Ex. 4.)
DISCUSSION
I. Legal Standards
A. Default Generally
Following a default, the Court must accept all the well-pleaded factual allegations in the Complaint as true, except those relating to damages. See Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009). If the well-pleaded allegations establish the defaulting party's liability, the only remaining issue is whether plaintiff has provided adequate support for its requested relief. See Gucci Am., Inc. v. Tyrrell-Miller, 678 F.Supp.2d 117, 119 (S.D.N.Y. 2008) (citing Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)).
B. Copyright Act
To establish a violation of the Copyright Act, a plaintiff must demonstrate her ownership of a valid copyright and defendant's infringement, that is, copying of original elements of the copyrighted work. See Arista Records LLC v. Doe 3, 604 F.3d 110, 117 (2d Cir. 2010). Under the Copyright Act, “an infringer of copyright is liable for either” actual damages and profits or statutory damages. 17 U.S.C. §§ 504(a)(1)-(2). The first category consists of “the actual damages suffered . . . as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.” 17 U.S.C. § 504(b).
The second category, statutory damages, exists in two forms. In its general form, a plaintiff may recover “with respect to any one work . . . a sum of not less than $750 or more than $30,000 as the court considers just.” 17 U.S.C. § 504(c)(1). In its second form, if “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.” 17 U.S.C. § 504(c)(2).
The Copyright Act states that the Court “in its discretion may allow the recovery of full costs,” which includes reasonable attorneys' fees. 17 U.S.C. § 505.
II. Application
A. Copyright Infringement Damages
Plaintiff has established that she is the owner of the registered copyright in the Work at issue and Defendant's infringement of such copyright. Plaintiff has elected to recover statutory damages for Defendant's copyright infringement. (See Pl.'s Proposed Findings at 6-9.)
“The Copyright Act affords [a] court ‘wide discretion' in setting the amount of statutory damages.” Myeress v. Elite Travel Group USA, No. 18-CV-00340 (AJN), 2018 WL 5961424, at *3 (S.D.N.Y. Nov. 14, 2018) (quoting Fitzgerald Publ'g. Co. v. Baylor Publ'g. Co., Inc., 807 F.2d 1110, 1116 (2d Cir. 1986)). In determining an appropriate statutory damages award, courts in this Circuit also consider the following factors (the so-called Bryant 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.Myeress, 2018 WL 5961424, at *3 (quoting Bryant v. Media Right Productions, 603 F.3d 135, 144 (2d Cir. 2010) (citation omitted)).
In cases of willful infringement, an award should “discourage wrongful conduct, as well as . . . provide reparation for injury.” Broadcast Music, Inc. v. Prana Hosp., Inc., 158 F.Supp.3d 184, 197-98 (S.D.N.Y. 2016) (internal quotation marks omitted). To achieve these purposes, courts often impose as statutory damages a multiple of the applicable licensing fee a defendant would have paid but for the infringement. See Barcroft Media, Ltd. v. Coed Media Grp., LLC, 297 F.Supp.3d 339, 356 (S.D.N.Y. 2017). Where infringement is willful but not “truly egregious,” courts in this Circuit frequently award statutory damages of between three and five times the cost of the licensing fees the defendant would have paid. See Prana Hosp., Inc., 158 F.Supp.3d at 199 (collecting cases).
Because no discovery occurred due to Defendant's default, Plaintiff could not obtain evidence from which the Court is able to evaluate the expenses saved or the profits earned by Defendant (the second Bryant factor) or the value of the infringing material (the fifth Bryant factor). The Court can, however, evaluate Defendant's state of mind, which is inferred from its default (the first Bryant factor); the revenues Plaintiff lost due to Defendant's infringement (the third Bryant factor); and Defendant's conduct and attitude, which also is inferred from Defendant's default (the sixth Bryant factor). The Court also considers the deterrent effects of a damages award on Defendant and third parties (the fourth Bryant factor).
See Prokos v. Mont Morris, LLC, No. 20-CV-02323 (PKC), 2020 WL 5819904, at *2 (S.D.N.Y. Sept. 30, 2020) (defendant's “default weighs against it when considering its cooperation” in providing evidence concerning the value of infringing material).
See Mordant v. Citinsider LLC, No. 18-CV-09054 (RA), 2019 WL 3288391, at *1 (S.D.N.Y. July 22, 2019) (“courts in this circuit have consistently found that . . . [defendants'] copyright infringement may be deemed willful by virtue of [their] default, without a further showing by the plaintiff” (alterations in original)).
See Sadowski v. Render Media Inc., No. 17-CV-09045 (PGG) (JLC), 2020 WL 1178629, at *4 (S.D.N.Y. Mar. 10, 2020), report and recommendation adopted, 2020 WL 5968668 (S.D.N.Y. Oct. 8, 2020) (under factor six, the Court may find that defendant's conduct was willful based on defendant's default).
Based upon the foregoing, the Court concludes that an award of five times the licensing fee for the Work (i.e., $3,500,00) is appropriate, resulting in a total award of $17,500.00. See Howarth v. FORM BIB LLC, No. 18-CV-07047 (JPO) (SN), 2020 WL 3441030, at *3 (S.D.N.Y. May 11, 2020), report and recommendation adopted, 2020 WL 3436685 (S.D.N.Y. June 22, 2020) (awarding five times licensing fees per work).
B. Attorneys' Fees And Costs
Plaintiff also seeks an award of attorneys' fees and costs under the Copyright Act which permits such award. An award of fees “lies within the sole and rather broad discretion of the Court.” Baker v. Urban Outfitters, Inc., 431 F.Supp.2d 351, 357 (S.D.N.Y. 2006). In exercising that discretion, courts should consider “frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.” Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95, 108 (2d Cir. 2014) (citation omitted). Given Defendant's willful misconduct, together with its failure to offer any defense to Plaintiff's claims, attorneys' fees should be awarded in this case. Plaintiff requests fees in the amount of $2,767.50 plus $858.58 in costs and has submitted the Declaration of Joseph A. Dunne in support of this request. (Dunne Decl., ECF No. 13-2.)
“The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cty. of Albany, 522 F.3d 182, 186 (2d Cir. 2008) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The burden is on the fee applicant to provide evidence that “the requested hourly rates are the prevailing market rates.” Farbotko v. Clinton, 433 F.3d 204, 209 (2d Cir. 2005). “A reasonable rate is generally the ‘prevailing market rate[ ] for counsel of similar experience and skill to the fee applicant's counsel.'” Williams v. Epic Sec. Corp., 368 F.Supp.3d 651, 656 (S.D.N.Y. 2019) (citing Farbotko v. Clinton County, 433 F.3d 204, 209 (2d Cir. 2005)). “In deciding what constitutes a reasonable rate, a court may consider ‘rates awarded in prior cases and the court's own familiarity with the rates prevailing in the district.'” Id.
After determining the reasonable hourly rates for each attorney and staff member, the Court must examine the hours expended to determine their reasonableness, excluding excessive, redundant or otherwise unnecessary hours. See Prana Hosp., Inc., 158 F.Supp.3d at 201. The fee applicant bears the burden of establishing the hours reasonably expended on the case and must submit adequate documentation of those hours. See Hensley, 461 U.S. at 437. The fee applicant must also exercise adequate “billing judgment” and exclude from the fee application any hours that were not reasonably expended on the case. Id. at 434. “Hours that are excessive, redundant, or otherwise unnecessary, are to be excluded . . . and in dealing with such surplusage, the court has discretion simply to deduct a reasonable percentage of the number of hours claimed as a practical means of trimming fat from a fee application.” Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (internal citations and quotation marks omitted).
1. Reasonable Hourly Rates
Attorney Dunne, who has practiced law for about 10 years (see Dunne Decl. ¶ 2), seeks an hourly rate of $450.00 for himself, which is reasonable. See Sid Avery & Assocs., Inc. v. Parallel Bar Inc., No. 19-CV-07112 (VSB) (KNF), 2021 WL 3063852, at *4 (S.D.N.Y. Feb. 2, 2021), report and recommendation adopted, 2021 WL 3056173 (S.D.N.Y. July 17, 2021) (awarding $450 per hour to Dunne). The invoice submitted in support of the attorneys' fees sought lists the initials of six timekeepers in addition to Attorney Dunne, with hourly rates ranging from $175.00 to $475.00. (See Invoice, ECF No. 13-7, at PDF p. 8.)
Plaintiff seeks recovery of fees for Associate Eliezer Lekht, who presumably is identified on the Invoice as “EL” (see Invoice at p. 8), at an hourly rate of $325.00 (Dunne Decl. ¶ 4), but no biographical information is provided. In these circumstances, the Court reduces Associate Lekht's hourly rate to $250.00. See Night Hawk Ltd. v. Briarpatch Ltd., L.P., No. 03-CV-01382 (RWS), 2004 WL 1375558, at *4 (S.D.N.Y. June 17, 2004) (“where no information is provided concerning the credentials or experience of counsel applying for fees, it is appropriate to reduce the amount of a fee award sought”).
Plaintiff seeks recovery of fees for Paralegal Lia Williams, whose initials presumably are “LDW,” at an hourly rate of $200.00, and for Legal Assistant Tyler Unfer, whose initials presumably are “TSU, at an hourly rate of $175.00. (Dunne Decl. ¶¶ 6-7.) These rates are reasonable. See 1979 Fam. Tr. Licensor, LLC v. Darji, No. 19-CV-04389 (VEC), 2020 WL 9596279, at *1 (S.D.N.Y. Sept. 30, 2020) (“Courts in this district typically approve paralegal hourly rates between $150 and $200.” (citing cases)).
Since the Court has no information for the timekeepers identified on the invoice with the initials “JBR,” “JCJ” or “JRG” (see Invoice at PDF p. 8), there is an insufficient basis to award fees for the work they performed. In addition, although Law Clerk Rachel Kaminetzky's name is listed in the Dunne Declaration (Dunne Decl. ¶ 5), the Court cannot determine what work, if any, she performed, since there are no time entries containing a first initial “R” and a last initial “K.” (See Invoice at PDF pp. 3-6, 8.) Thus, there is no basis for the Court to award fees for any work by Clerk Kaminetzky.
2. Reasonable Hours
The Court next considers the hours expended by the timekeepers for whom it is awarding fees, i.e., Attorney Dunne, Associate Lekht, Paralegal Williams and Legal Assistant Unfer. Attorney Dunne billed a total of 1.2 hours. (See Invoice at PDF p. 8.) However, his time entries for all but one-tenth of an hour refer to “emails sent/reviewed.” (See id. at PDF pp. 5-6.) As such, the Court cannot determine if the time billed in these entries was reasonable and thus reduces the hours billed by Attorney Dunne by 20% to 1.0 hour. See Sery v. Medina, No. 13-CV-00165 (RLE), 2016 WL 3282491, at *4 (S.D.N.Y. June 10, 2016) (where “many of the time records lack sufficient specificity for the court to determine whether the hours expended on each task were reasonable,” hours reduced by 20%).
Associate Lekht billed a total of 0.3 hours (Invoice at PDF p. 8), which the Court will award. Paralegal Williams billed a total of 7.8 hours. (Id.) While many of her time entries contain sufficient detail of the work performed, certain of her entries refer only to “emails sent/reviewed” or “[m]atter admin.” (See id. at PDF pp. 4-6.) Thus, the Court will reduce the hours for Paralegal Williams by 10% to 7.0 hours. Legal Assistant Unfer billed one-tenth of an hour, which will be credited.
The following chart reflects the fees awarded by timekeeper:
| Timekeeper | Hourly Rate | Hours | Total |
| Dunne | $450.00 | 1.0 (1.2 less 20%) | $450.00 |
| Lekht | $250.00 | 0.3 | $75.00 |
| Williams | $200.00 | 7.0 (7.8 less 10%) | $1,400.00 |
| Unfer | $175.00 | 0.1 | $17.50 |
| $1,942.50 |
3. Costs
Plaintiff requests $858.88 in costs, consisting of the filing fee and service expenses (see Invoice at PDF pp. 7-8), which are reasonable.
CONCLUSION
For the foregoing reasons, I respectfully recommend that a judgment be entered awarding Plaintiff: (1) statutory damages under the Copyright Act in the amount of $17,500.00; (2) attorneys' fees in the amount of $1,942.50; and (3) $858.88 in costs. Plaintiff is directed to promptly serve a copy of this Report and Recommendation on Defendant and to file proof of such service no later than July 10, 2023.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Any requests for an extension of time for filing objections must be addressed to Judge Engelmayer.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).