Haker v. Tentree Int'l.

• Decision Date: 31 August 2021
• Docket Number: 20-cv-1499
• Parties: MATTHIAS HAKER, Plaintiff, v. TENTREE INTERNATIONAL INC., Defendant.
• Court: U.S. District Court — Eastern District of New York

MATTHIAS HAKER, Plaintiff, v. TENTREE INTERNATIONAL INC., Defendant.

No. 20-cv-1499

United States District Court, E.D. New York

August 31, 2021

MEMORANDUM & ORDER

KIYO A. MATSUMOTO, United States District Judge:

Mathias Haker (“Plaintiff”) commenced this action on March 20, 2020, alleging that Defendant Tentree International Inc. (“Tentree” or “Defendant”) without authorization, reproduced and published a copyrighted photograph of Berlin, Germany (“the Photograph”) owned and registered by Plaintiff, in violation of Section 501 of the Copyright Act (“the Act”), 17 U.S.C § 501. (See ECF No. 1, Complaint (“Compl.”); ECF No. 11, Exhibit A, the Photograph.) On December 28, 2020, an entry of default was entered against the Defendant. (ECF No. 13, Clerk's Entry of Default.) Upon Defendant's failure to appear, answer or respond to the Complaint, Plaintiff now moves for default judgment, statutory damages, and costs. For the reasons set forth below, Plaintiff's motion for default judgment is GRANTED.

BACKGROUND

I. Facts

Where a defendant defaults, a court must accept the plaintiff's well-pleaded factual allegations as true and draw all reasonable inferences in the plaintiff's favor. Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009); Bricklayers & Allied Craftworkers Local 2 v. Moulton Masonry & Constr., LLC, 779 F.3d 182, 187-88 (2d Cir. 2015). The Court consequently accepts Plaintiff's well-pleaded factual allegations as true for the purpose of reviewing its motion for default judgment.

Plaintiff is a Germany-based professional photographer who is “in the business of licensing his photographs for a fee.” (Compl. at ¶ 5.) Defendant owns and operates a website at the URL: www.Tentree.com (“the website”), and does business in New York and California. (Id. at ¶ 6.) Defendant allegedly printed Plaintiff's photograph, without authorization from Plaintiff, in an article titled “The 10 most ecofriendly cities, ” posted on Defendant's website. (Id. at ¶ 10; ECF No. 1-2, Exhibit B.) Plaintiff owns all rights to the Photograph and had registered the Photograph with the U.S. Copyright Office under Copyright Registration Number VA 2-069-125. (Id. at ¶¶ 8-9.)

II. Procedural History

Plaintiff filed the instant action on March 20, 2020, and thereafter properly served the Summons and Complaint on Defendant. (Compl.; ECF No. 2, Summons Issued as to Tentree; ECF No. 7, Summons Returned Executed as to Tentree.) On November 23, 2020, Magistrate Judge Gold directed Plaintiff to seek an entry of default by December 21, 2020 and move for default judgment within two weeks of the entry of default. (Dkt. Order 11/23/2020.) On December 21, 2020, Plaintiff requested a certificate of default. (ECF No. 10, Request for Certificate of Default.) On December 28, 2020, the Clerk of Court entered the Certificate of Default. (ECF No. 13, Certificate of Default.) On January 11, 2021, Plaintiff filed a motion for default judgment. (ECF No. 14, Motion for Default Judgment.) Defendant was served with the Motion for Default Judgment on March 18, 2021. (ECF No. 18, Certificate of Service.) To date, Defendants have not answered, or otherwise responded to Plaintiff's Complaint, or motion for entry of default judgment.

LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 55, a movant must complete a two-step process to obtain a default judgment. Rodriguez v. Almighty Cleaning, Inc., 784 F.Supp.2d 114, 123 (E.D.N.Y. 2011); La Barbera v. Fed. Metal & Glass Corp., 666 F.Supp.2d 341, 346-47 (E.D.N.Y. 2009). First, the Clerk of the Court must enter default “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise.” Fed.R.Civ.P. 55(a); Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993). Second, upon the Clerk's entry of default, the movant “may then make an application for entry of a default judgment, pursuant to Fed.R.Civ.P. 55(b).” Rodriguez, 784 F.Supp.2d at 123. “‘The court is to exercise sound judicial discretion' in determining whether the entry of default judgment is appropriate.” Trs. of Local 7 Tile Indus. Welfare Fund v. City Tile, Inc., No. 10-CV-322, 2011 WL 917600, at *1 (E.D.N.Y. Feb. 18, 2011) (quoting Badian v. Brandaid Commc'ns Corp., No. 03-CV-2424, 2004 WL 1933573, at *2 (S.D.N.Y. Aug. 30, 2004)), adopted by 2011 WL 864331 (E.D.N.Y. Mar. 10, 2011). “In evaluating a motion for default judgment pursuant to Federal Rule of Civil Procedure 55(b)(2), the [c]ourt must accept as true the well-pleaded allegations in the complaint, ” except those relating to damages. Id. at *2 (citing Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 15455 (2d Cir. 1999)).

Here, the Clerk of the Court entered a default against Defendant on December 28, 2020, and Plaintiff thereafter filed the unopposed motion for default judgment presently before the court. As previously noted, Defendant has been properly served with the summons and complaint, (see ECF No. 2, Summons Issued as to Tentree; ECF No. 7, Summons Returned Executed as to Tentree), and with the motion for default judgment. (ECF No. 18, Certificate of Service.) Defendant has neither appeared, nor moved to vacate the Clerk's entry of default, nor opposed the motion for default, despite being provided notice.

Consequently, Plaintiff has completed the necessary steps to obtain a default judgment. See Bricklayers Ins. & Welfare Fund v. David & Allen Contracting, Inc., No. 05-CV-4778, 2007 WL 3046359, at *2 (E.D.N.Y. Oct. 16, 2007) (“In civil actions, when a party fails to appear after given notice, the court normally has justification for entering default.”) (citing Bermudez v. Reid, 733 F.2d 18, 21 (2d Cir. 1984)).

DISCUSSION

I. Liability

Defendants' default in this case, however, “does not necessarily conclusively establish . . . defendant[s'] liability.” Trs. of the Plumbers Local Union No. 1 Welfare Fund v. Philip Gen. Constr., No. 05-CV-1665, 2007 WL 3124612, at *3 (E.D.N.Y. Oct. 23, 2007). As such, this court “must still determine whether . . . plaintiff has stated a cause of action.” Bd. of Trs. of the UFCW Local 174 Pension Fund v. Jerry WWHS Co., No. 08-CV-2325, 2009 WL 982424, at *3 (E.D.N.Y. Apr. 10, 2009) (citing Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)); Philip Gen. Constr., 2007 WL 3124612, at *3 (“Nevertheless, ‘[e]ven after default it remains for the court to consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law.'” (alteration in original) (quoting In re Wildlife Ctr., Inc., 102 B.R. 321, 325 (Bankr. E.D.N.Y. 1989))).

Here, Plaintiff's Complaint alleges that Tentree violated §§ 106 and 501 of the Act. (Compl. at ¶ 14.) The relevant subsections of the Act vest the owner of a copyright with:

the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending....

17 U.S.C. § 106(1)-(3).

“Copyright infringement is a strict liability offense in the sense that a plaintiff is not required to prove unlawful intent or culpability.” EMI Christian Music Grp., Inc. v. MP3tunes, LLC, 844 F.3d 79, 89 (2d Cir. 2016); see also Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121, 130 (2d Cir. 2008); Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F.2d 304, 308 (2d Cir. 1963). In order to establish copyright infringement, “two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 358 (1991).

Ownership of a valid copyright “can be established by the introduction into evidence of a Copyright Office certificate of registration, ” which is sufficient to establish validity for the purpose of default judgment. Pasatieri v. Starline Prods., Inc., No. 18-CV-4688 (PKC)(VMS), 2020 WL 207352, at *2 (E.D.N.Y. Jan. 14, 2020); see also Sheldon v. Plot Commerce, No. 15-CV-5885 (CBA) (CLP), 2016 WL 5107072, at *11-12 (E.D.N.Y. Aug. 26, 2016) (internal quotation omitted), report and recommendation adopted, 2016 WL 5107058 (E.D.N.Y. Sept. 19, 2016). Here, Plaintiff submitted the Certificate of Registration for the Photograph with an effective date of registration of September 12, 2017. (ECF No. 16-4, Certificate of Registration.) The Certificate lists the author of the Photograph as Plaintiff, Matthias Haker. (Id.) Based on the Certificate of Registration, the Court has determined that Plaintiff has established ownership of a valid copyright for the Photograph.

In order to establish the second element of originality “the burden is minimal.” Sheldon v. Plot Com., 2016 WL 5107072, at *11 (E.D.N.Y. Aug. 26, 2016), report and recommendation adopted, 2016 WL 5107058 (E.D.N.Y. Sept. 19, 2016). “Originality does not mean that the work for which copyright protection is sought must be either novel or unique ....[I]t simply means a work independently created by its author, one not copied from pre-existing works, and a work that comes from the exercise of the creative powers of the author's mind, in other words, ‘the fruits of [the author's] intellectual labor.'” Boisson v. Banian. Ltd., 273 F.3d 262, 268 (2d Cir. 2001) (quoting In re Trade-Mark Cases, 100 U.S. 82, 94 (1879)). “The necessary originality for a photograph may be founded upon, among other things, the photographer's choice of subject matter, angle of photograph, lighting, determination of the precise time...