Miller v. Netventure24 LLC
| Decision Date | 06 August 2021 |
| Docket Number | 19-CV-7172 (LGS) (BCM) |
| Parties | ROBERT MILLER, Plaintiff, v. NETVENTURE24 LLC, Defendant. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION TO THE HON. LORNA G SCHOFIELD
Plaintiff Robert Miller, a professional photographer, filed this action under the Copyright Act, 17 U.S.C. § 101, et seq., and the Digital Millennium Copyright Act (DMCA) 17 U.S.C. § 1201, et seq., after defendant Netventure24 LLC (Netventure) displayed four of Miller's copyrighted photographs on its website without permission license, or payment. On November 5, 2019, the Honorable Lorna G. Schofield, United States District Judge, issued a default judgment against Netventure and referred the action to me to conduct an inquest into damages. (Dkt. Nos. 29, 30.)
For the reasons that follow, I respectfully recommend that plaintiff be awarded $14, 000 in statutory damages under the Copyright Act, $10, 000 in statutory damages under the DMCA, and $4, 235 and $728.50 in attorneys' fees and expenses, respectively.
Plaintiff, a professional photographer who resides in New York City, licenses or sells his photographs to various media outlets such as the New York Post, the New York Times, and Rolling Stone magazine. Complaint (Compl.) (Dkt. No. 1) ¶ 11. Miller is the sole author and exclusive rights holder of the four photographs at issue in this case (collectively, the Images): (1) a photograph of police officers in front of a storefront (Image 1); (2) a photograph of a New York City shuttle bus (Image 2); (3) a photograph of Gus Kassimis, the former owner of Tivoli Café in New York City (Image 3); and (4) a photograph of Norman Seabrook, a former chief of the Correction Officers' Benevolent Association union (Image 4). Id. ¶ 12 & Ex. B. Miller registered Images 1, 2, and 3 with the United States Copyright Office on September 25, 2018, and registered Image 4 on October 23, 2018. Id. ¶ 13; Proposed Findings of Fact and Conclusions of Law (Prop. Findings) (Dkt. No. 32) ¶¶ 4-5.
The Images were originally published in four different articles "featured in the New York Post" in the summer of 2018. Compl. ¶¶ 14-17. Image 1 appeared in an article on July 1, 2018; Image 2 on July 6, 2018; Image 3 on July 27, 2018; and Image 4 on August 2, 2018. Id. On the bottom left corner of each photo was a "gutter credit" attributing the Images to Miller. Id. ¶ 18.
Netventure, which plaintiff describes as a "Delaware corporation," Compl. ¶ 6, [1] produces a "New York specific online publication" through the website NewYorkCityInformer.com, where it posts content targeted to New York City in the form of articles and photographs. Compl. ¶ 7. Shortly after the Images appeared in the New York Post, Miller discovered that Netventure had used them in articles on its own website. Miller made the discoveries on July 17 (as to Images 1 and 2), July 28 (as to Image 3), and August 3 (as to Image 4). Id. ¶¶ 19-22 & Ex. C. None of the infringing articles provided credit to Miller for the Images. Id. ¶ 24. Moreover, Netventure did not license the Images from plaintiff for its articles, nor did it have plaintiff's permission or consent to publish the Images on its website. Id. ¶¶ 26, 27.
Miller filed this action on July 31, 2019, alleging that Netventure violated: (1) the Copyright Act, by reproducing and publicly displaying the Images on its website without permission, license, or consent, Compl. ¶¶ 28-33; and (2) the DMCA, by falsifying the copyright management information (CMI) on the Images when it republished them without the gutter credit identifying Miller as the photographer. Id. ¶¶ 34-41.
On August 14, 2019, plaintiff served Netventure with process through its registered agent. See Acknowledgment of Service (Dkt. No. 10). Netventure failed to appear, answer, or otherwise respond. On September 23, 2019, at plaintiff's request (Dkt. No. 18), the Clerk of Court issued a Certificate of Default (Dkt. No. 19), and on September 27, 2019, also at plaintiff's request (Dkt. No. 21), Judge Schofield ordered Netventure to show cause why a default judgment should not be entered against it pursuant to Fed.R.Civ.P. 54(b) and 55(b). See Order to Show Cause (Dkt. No. 23). Plaintiff promptly served the Order to Show Cause and supporting papers on Netventure through its registered agent. See Affidavit of Service (Dkt. No. 27). On November 5, 2019, the date of the show-cause hearing, Netventure failed to appear. Judge Schofield thereafter issued the default judgment and referred the case to me for a damages inquest.
On November 6, 2019, I issued a scheduling order (Dkt. No. 31) directing plaintiff to file his Proposed Findings of Fact and Conclusions of Law no later than November 22, 2019, and to serve his inquest papers on defendant Netventure. Id. at 1. The Scheduling Order also set a deadline of December 13, 2019 for Netventure to file its response, if any. Id. at 4.
Plaintiff submitted his Proposed Findings on November 22, 2019, along with an Affidavit of Service (Dkt. No. 33) showing that he served Netventure by mail. Plaintiff seeks $34, 000 in statutory damages for copyright infringement under 17 U.S.C. §§ 101 and 504(c); $10, 000 in statutory damages under 17 U.S.C. §§ 1202(a) and (b); and $4, 235 in attorneys' fees and $728.50 in costs under 17 U.S.C. §§ 505 and 1203(b). Prop. Findings ¶¶ 50, 57, 61.
Once again, Netventure failed to respond.
Since neither party has requested a hearing on the issue of damages, and since defendant did not submit any written materials, I have conducted the inquest based solely upon the materials submitted by plaintiff. See Bricklayers & Allied Craftworkers Local 2 v. Moulton Masonry & Constr., LLC, 779 F.3d 182, 189 (2d Cir. 2015) (); De Lage Landen Fin. Servs., Inc. v. Universal Wilde, Inc., 2019 WL 4195441, at *3 n.2 (S.D.N.Y. Aug. 15, 2019) (), report and recommendation adopted, 2019 WL 4194574 (S.D.N.Y. Sept. 3, 2019).
Because Miller brought this action under the Copyright Act, subject-matter jurisdiction is properly based on 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1338(a) (copyright jurisdiction). See Compl. ¶¶ 1, 2.
I am also satisfied as to personal jurisdiction over the defendant, which is "a necessary prerequisite to entry of a default judgment." Sheldon v. Plot Commerce, 2016 WL 5107072, at *6 (E.D.N.Y. Aug. 26, 2016), report and recommendation adopted, 2016 WL 5107058 (E.D.N.Y. Sept. 19, 2016).[2] Where, as here, the issue of personal jurisdiction is analyzed "on the pleadings and without discovery, the plaintiff need show only a prima facie case" that jurisdiction exists. Volkswagenwerk Aktiengesellschaft v. Beech Aircraft Corp., 751 F.2d 117, 120 (2d Cir. 1984). At this stage, moreover, the pleadings "are construed in the light most favorable to plaintiff," and any doubts are resolved in favor of jurisdiction. Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985).
The Copyright Act does not contain its own personal jurisdiction or service provision. Thus, I must first "determine whether the defendant is subject to jurisdiction under the law of the forum state - here - New York," and then "consider whether the exercise of personal jurisdiction over the defendant comports with the Due Process Clause of the United States Constitution." Sonera Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221, 224 (2d Cir. 2014).
Under New York law, a non-domiciliary defendant is subject to specific personal jurisdiction here if that defendant:
and if the cause of action sued upon arises from the enumerated act(s). N.Y. C.P.L.R. (CPLR) § 302(a). Plaintiff alleges that this Court may exercise personal jurisdiction over Netventure pursuant to CPLR §§ 302(a)(1) and (a)(3) because Netventure "maintains contacts within the state of New York by producing a New York specific online publication, and . . . has committed the tortious act of infringement causing injury to a person within the state of New York." Compl. ¶ 3; see also Prop. Findings ¶ 17.
"It has long been observed that technological advances affecting the nature of commerce require the doctrine of personal jurisdiction to adapt and evolve along with those advances." Citigroup Inc. v. City Holding Co. 97 F.Supp.2d 549, 565 (S.D.N.Y. 2000). Nonetheless, maintaining "contacts" with the State of New York through a "passive" website is not sufficient - standing alone - to subject an out-of-state business to personal jurisdiction under CPLR §...
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