Lived in Images, Inc. v. Noble Paint & Trim, Inc.
| Decision Date | 05 February 2016 |
| Docket Number | Case No: 6:15-cv-1221-Orl-40DAB |
| Parties | LIVED IN IMAGES, INC., Plaintiff, v. NOBLE PAINT AND TRIM, INC. and DOES 1-5, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
This cause came on for consideration without oral argument on the following motion filed herein:
Plaintiff Lived in Images, Inc. has obtained an entry of default against Defendant Noble Paint and Trim, Inc. ("Noble Paint") who failed to defend the claims against it in this case. Plaintiff now moves for final default judgment and an award of statutory damages of $50,000 against Noble Paint.
On July 28, 2015, Plaintiff Lived In Images filed a Complaint against Defendant Noble Paint and five "John Does"1 for copyright infringement in displaying photographs on Noble Paint'swebsite as well as reproducing, making derivative works, and distributing copies. Doc. 1 ¶ 20. Lived In Images obtained an entry of default against Noble Paint on September 14, 2015, when it failed to respond to the Complaint. Doc. 9. Lived In Images has now moved for final default judgment against Noble Paint, although Lived In Images does not indicate whether it is also seeking a dismissal of the claims against the fictitiously named Defendants, Does 1 through 5. Doc. 10. Lived In Images has submitted the declaration of its chief executive officer ("CEO") in support of its Motion for Default Judgment and the amount of damages. Docs. 11, 12. Being that Noble Paint has not appeared, it is respectfully RECOMMENDED that Plaintiff's Motion for Final Default Judgment be GRANTED against Defendant Noble Paint and Trim, Inc. and, if Lived In Images intends to dismiss its claim against Defendants Does 1-5, then final default judgment be entered immediately2.
A district court may enter a default judgment against a properly served defendant who fails to defend or otherwise appear pursuant to Federal Rule of Civil Procedure 55(b)(2); DirecTV, Inc. v. Griffin, 290 F.Supp.2d 1340, 1343 (M.D. Fla. 2003). Noble Paint was served with a summons and a copy of Lived In Images' Complaint on July 31, 2015. Doc. 7. However, Noble Paint did not file a timely response with this Court after being served with process. The Court finds that Noble Paint's failure to timely respond to the Complaint and subsequent entry of default against it served to admit the well pleaded allegations of the Complaint, including that Noble Paint's infringement of Lived In Images' copyright was willful. See, e.g., Buchanan v. Bowman, 820 F.2d 359 (11th Cir. 1987) ().
Because default has been properly entered against Noble Paint, it is deemed to have admitted the allegations made in Lived In Images' Complaint. See Doc. 1. To prove copyright infringement, a plaintiff must show: (1) ownership of a valid copyright; and (2) copying of constituent elements of the work that are original. Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1232-33 (11th Cir. 2010); JCW Invs., Inc. v. Novelty, Inc., 482 F.3d 910, 914 (7th Cir. 2007). A certificate of copyright registration provides a prima facie presumption of validity. Mid Am. Title Co. v. Kirk, 59 F.3d 719, 721 (7th Cir.1995).
Lived In Images is a leading stock photo archive specializing in home, garden, and interior design pictures. Id. ¶ 7. With one of the largest home design databases, Lived In Images offers both royalty free and rights managed licensing for use of its photographs; the photographs are licensed commercially and editorially, and either individually or as a group with accompanying text. Id. ¶ 8. Lived In Images registered a group of 5,500 architectural photographs with the U.S. Copyright Office and was issued Copyright Registration No. VA 1-431-181 (November 13, 2009) (hereafter "Group Registration"). Id. ¶ 9 & at 8-9. Each photograph in the Group Registration is copyrightable subject matter under 17 U.S.C. § 102(a)(5), and Lived In Images has complied in all respects with the provisions of the Copyright Act and all regulations thereunder. Id. ¶¶ 16, 17. Lived In Images has the exclusive rights under 17 U.S.C. §106 to (1) reproduce the copyrighted photographs, (2) prepare derivative works of the copyrighted photographs, (3) distribute copies of the copyrighted photographs, and (4) display the copyrighted photographs publicly. Id. ¶ 19. Since all of its income is generated through licensing, Lived In Images polices distribution and reproduction of its copyrighted works. Doc. 12, Thomas Decl. ¶5.
Noble Paint provides house painting services, and, to promote its business, it maintains a website located at www.noblepaintandtrim.com. Doc. 1 ¶ 10. On or around November 2014, Lived In Images discovered that Noble Paint was displaying a copy of Lived In Images' copyrighted image from the Group Registration without license or permission on its website. Id. ¶ 11 & at 12(screenshot of Noble Paint's infringing use). Lived In Images had registered the copyright in each photograph in the Group Registration with the United State Copyright Office before Noble Paint began its infringing conduct. Id. ¶ 18. Shortly thereafter, Lived In Images sent Noble Paint a notice by email informing it of the infringing use; Lived In Images subsequently sent two additional notices by email, but Noble Paint never responded. Id. ¶ 12; Doc. 12 ¶ 7. Without the permission or consent of Lived In Images, Noble Paint reproduced photographs from the Group Registration, made derivative works, and distributed copies of the photographs as they were displayed on Noble Paint's website; thus, Lived In Images' exclusive rights in the photographs in the Group Registration were violated. Doc. 1 ¶¶ 20 & 21. Noble Paint induced, caused, or materially contributed to the infringement; had actual knowledge of its infringement; and acted willfully. Id. ¶¶ 22-24.
The Court finds that Noble Paint's failure to timely respond to the Complaint and subsequent entry of default against it served to admit the well pleaded allegations of the Complaint, including that Noble Paint's unauthorized use of Live In Images' photograph was willful and infringed Lived In Images' valid copyright. See, e.g., Buchanan v. Bowman, 820 F.2d 359 (11th Cir. 1987) (); see also Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir. 2009) (citing Nishimatsu Const. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)).
Once liability is established, the district court must also assess damages. Chanel, Inc. v. French, 2006 WL 3826780 *2 (S.D. Fla. 2006). The traditional remedies for violations of the Copyright Act include injunctive relief, impoundment and destruction of infringing articles, money damages, and costs and fees. 17 U.S.C. §§ 502-505. Lived In Images seeks $50,000 in statutory damages under the Copyright Act, and $2,186.00 in attorney's fee and $572.10 for costs incurred in bringing this suit.
Default judgments for both injunctive and monetary relief may be entered when a defendant fails to respond to or defend against claims of copyright infringement. Arista Records, Inc. v. Beker Enterprises, Inc., 298 F.Supp.2d 1310, 1312 (S.D. Fla. 2003). As to monetary damages, Plaintiff can elect to seek statutory damages, actual damages, or a disgorgement of the defendants' profits. See id. at 1312; see also Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 353 (1998) (). "In copyright cases, 'although attorneys' fees are awarded in the trial court's discretion, they are the rule rather than the exception and should be awarded routinely" in default cases. Arista Records, Inc. v. Beker Enterprises, Inc., 298 F.Supp.2d 1310, 1316 (S.D. Fla. 2003); Broadcast Music, Inc. v. Dano's Restaurant Systems, Inc., 902 F.Supp. 224, 227 (M.D. Fla. 1995)).
Lived In Images originally sought an award of the actual damages suffered by Lived In Images as the result of Noble Paint's infringement plus the profits of Noble Paint attributable to the infringement under 17 U.S.C. § 504(b); however, Lived in Images also sought in the alternative an award of statutory damages for each infringement of the Group Registration under 17 U.S.C. § 504, and a judgment that Noble Paint's infringement was willful and an increased statutory damage award under 17 U.S.C. § 504. Doc. 1.
Statutory damages are not designed to be merely compensatory or restitutionary, but are also meant to discourage wrongful conduct. Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 113-14 (2d Cir. 2001); Harrison Music Corp. v. Tesfaye, 293 F.Supp.2d 80, 83 (D.D.C. 2003). "Even for uninjurious and unprofitable invasions of copyright the court may, if it deems just, impose a liability within statutory limits to sanction and vindicate the statutory policy [of discouraging wrongful conduct]." F.W. Woolworth Co. v. Contemporary Arts, 344 U.S. 228, 233 (1952). Several courts have found statutory damages are especially appropriate in default judgment cases because the information needed to prove actual damages is uniquely within the infringers' control and is not disclosed. Microsoft Corp. v. McGee, 490 F.Supp.2d 874, 882 (S.D. Ohio 2007) (citing cases).
Jonathan Thomas, the Chief Executive Officer of Plaintiff Lived In Images, states in his Declaration that Lived In Images expends considerable effort and expenses to protect its copyright rights by policing distribution and reproduction of its copyrighted works. Doc. 12 ¶ 3. Lived In Images generates income by licensing its photos. Lived...
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