Pierce v. Lifezette, Inc.

Decision Date02 June 2021
Docket NumberCivil Action No. 20-0693 (ABJ)
PartiesTIM PIERCE, Plaintiff, v. LIFEZETTE, INC., Defendant.
CourtU.S. District Court — District of Columbia

***SEALED***

MEMORANDUM OPINION

On March 10, 2020, plaintiff Tim Pierce, a photographer, sued defendant Lifezette, Inc., alleging copyright infringement in violation of the Copyright Act of 1976, 17 U.S.C. § 101 et seq., and the Digital Millennium Copyright Act of 1998, 17 U.S.C. § 1202. Compl. [Dkt. # 1]. Defendant never responded, and now plaintiff is seeking statutory damages, a permanent injunction, and costs and attorneys' fees. Pl.'s Mot. for Default J. [Dkt. # 10] (SEALED) ("Mot.") at 10-18. For the following reasons, the Court will grant plaintiff's motion for default judgment, permanently enjoin defendant from further infringing the copyright, and enter judgment in the amount of $139,000, plus costs and attorneys' fees.

BACKGROUND

Plaintiff is a photographer and photojournalist who licenses copyrighted photographs to online and print publications. Compl. ¶ 1. On November 2, 2012, plaintiff captured a photograph depicting Massachusetts Senator Elizabeth Warren and then-Massachusetts Lieutenant Governor Tim Murray entitled "Elizabeth Warren and Tim Murray" ("Photograph") at an Elizabeth Warren campaign rally. Compl. ¶ 6. Plaintiff is the author of the photograph and he has continuously owned all rights to it, including its copyright. Compl. ¶ 8.

On November 3, 2012, plaintiff uploaded the Photograph to the website Flickr; it can be found at https://www.flickr.com/photos/qwrrty/8152000142/ ("Flickr Page"). Compl. ¶ 7; Ex. A to Compl. [Dkt. # 1-3].1 The Photograph was available on the Flickr Page under a "Creative Commons Attribution 2.0 Generic [L]icense" ("CC License"). Compl. ¶ 9. The Flickr Page includes plaintiff's name, the Photograph's title, and a "prominent statement '[s]ome rights reserved'" highlighted as a hyperlink which directs to a summary of the CC License's terms. Compl. ¶ 9; Ex. A; Ex. C. The summary states "[y]ou must give appropriate credit, provide a link to the license, and indicate if changes were made. You may do so in any reasonable manner, but not in any way that suggests the licensor endorses you or your use." Ex. C at 1 (bold and underline in original). The words "appropriate credit" and "indicate if changes were made" are hyperlinked and direct to a pop-up window stating "[i]f supplied, you must provide the name of the creator and attribution parties, a copyright notice, a license notice, a disclaimer notice, and a link to the material." Compl. ¶ 9; Ex. D at 1.

The summary also includes a hyperlink to the full CC License. Compl. ¶ 10; Ex. C. While the CC License grants "licensees a worldwide, royalty-free, non-exclusive license to reproduce, publicly display, and distribute copies of the licensed work . . . in all media and formats," this grant requires a licensee to, among other things, "give the original author . . . credit." Compl. ¶¶ 11-12; Ex. E at 2-3.

In short, as of 2012, a party interested in publishing the photograph could have done so at no cost as long as it provided plaintiff with the attribution to which he was entitled.

The complaint also alleges that in 2016, plaintiff registered the Photograph with the United States Copyright Office ("Copyright Office") and received a Certificate of Registration effective November 28, 2016. Compl. ¶ 8; Ex. B.

Defendant owns, operates, and controls the website Lifezette located at "www.lifezette.com" ("Website"). Compl. ¶ 2. On multiple occasions after plaintiff registered the Photograph with the Copyright Office, defendant, without plaintiff's permission or authorization, "reproduced and displayed copies of the Photograph on [its] Website and elsewhere without attribution" and without complying with the CC License. Compl. ¶¶ 13, 18. Defendant published the Photograph on its website without permission or attribution at least thirteen times. Compl. ¶¶ 14-16; Exs. G-R. Defendant also "reproduced and displayed copies of the Photograph on Facebook when it shared those articles through posts on Lifezette's Facebook account" at least three times. Compl. ¶ 17; Exs. S-U. Because these Facebook posts were shared "hundreds" of times, defendant "caused hundreds of additional acts of infringement." Compl. ¶ 17. All of the sixteen uses failed to comply with the CC License because none of the web pages or videos included plaintiff's name, the title of the Photograph, a link to the license, or a copy of the license. Compl. ¶ 18. According to the complaint, defendant also "intentionally removed information identifying Pierce, the title of the Photograph, and the terms and conditions for its use." Compl. ¶ 20. In fact, more than two months after the complaint was served, the infringing articles and posts were still on the Website and defendant's Facebook page. Mot. at 5; Aff. of Dan Booth [Dkt. # 10] ("Booth Aff.") ¶¶ 19-20.

Not only did defendant fail to identify plaintiff as the owner of the Photograph, but it posted copyright management information that falsely identified it as the copyright owner; each Website page displaying the Photograph includes (1) a copyright tag stating 2014-2020 LifeZette. ALL RIGHTS RESERVED," and (2) a hyperlink display to the Website's Terms of Use which claims either ownership or licensed use of the Photograph. Compl. ¶¶ 22-26; Ex. V and Ex. W. The Full Terms of Use Document ("Terms of Use") further purports that all images on the Website "belong[]" to defendant. Compl. ¶¶ 29-35; Ex. W.

Plaintiff also points to evidence to suggest that none of this is inadvertent. Defendant is the successor to the now-defunct Ingraham Media Group, Inc. ("IMG"). Mot. at 3. In 2016, plaintiff "discovered the unauthorized use of two of his photographs, including the Photograph" in five articles published on IMG's website. Id. Plaintiff contacted IMG regarding its infringing use of the Photograph, but it did not respond, and it proceeded to publish "three more articles featuring the Photograph." Booth Aff. ¶¶ 9-10. In October 2017, plaintiff reached a settlement with IMG in which he released IMG from any copyright violations made prior to October 2017 in return for $60,000. Booth Aff. ¶ 12; Ex. B to Mot. [Dkt. # 10] at 1. On December 27, 2017, "IMG was formally dissolved." Booth Aff. ¶ 13.

On January 3, 2018, defendant Lifezette "registered with the [District of Columbia's Department of Consumer and Regulatory Affairs] as a foreign corporation" and "took control of [IMG's] Website on or before that date." Booth Aff. ¶ 13. Multiple members of IMG's editorial staff transitioned to defendant Lifezette, and IMG's "part-owner" became a "part-owner" of defendant. Booth Aff. ¶¶ 14-18; Mot. at 9, 15 ("IMG's managing editor Maureen Mackey served as Lifezette's editor-in-chief, and IMG's videographer Andrew Brice created the infringing Video for Lifezette.").

On March 10, 2020, plaintiff filed a complaint alleging copyright infringement by Lifezette in violation of the Copyright Act of 1976, 17 U.S.C. § 101 et seq., and the Digital Millennium Copyright Act of 1998, 17 U.S.C. § 1202. Compl. ¶¶ 40-58. On March 13, 2020, at 1:15 PM, Lifezette, Inc. was duly served at 1090 Vermont Avenue, NW, Washington, DC 20005. Aff. of Service [Dkt. # 5] at 1. The summons notified defendant that "[w]ithin 21 days after service of this summons on you . . . you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure . . . If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint." Id. at 2. Defendant never responded to the summons. See Request for Entry of Default [Dkt. # 7] at 1. Plaintiff made multiple additional attempts to serve defendant beyond what was required by the Federal Rules, including contacting defendant's "designated copyright agent" and e-mailing courtesy copies to defendant's dedicated copyright-related e-mail address. Mot. at 2-3; Booth Aff. ¶¶ 4-7.

On April 20, 2020 - more than twenty-one days after attempted service - plaintiff requested that the Clerk of Court enter a Default against defendant, Mot. at 3, and two days later the Clerk of Court declared defendant was in default. Clerk's Entry of Default as to Lifezette, Inc. [Dkt. # 8]. On May 12, 2020, the request for default was mailed to defendant at "the street address listed in its Full Terms of Use Document," 1055 Thomas Jefferson Street, Suite 301, Washington, DC 20007, but was returned as undeliverable. Mot. at 3; Aff. of J. Matthew Williams, Ex. G to Mot. [Dkt. # 10] ("Williams Aff.") ¶ 4. On May 18, 2020, the same materials were mailed and delivered to defendant's registered agent at 1090 Vermont Avenue, NW, Washington, DC 20005. Mot. at 3; Williams Aff. ¶ 5.

Receiving no response, plaintiff filed the instant motion for default judgment on June 2, 2020. Plaintiff requests (1) "at least $75,000 in statutory damages under 17 U.S.C. § 504"; (2) "at least $200,000 in statutory damages under 17 U.S.C. § 1203"; and (3) "full costs, including reasonable attorneys' fees . . . under 17 U.S.C. §§ 505 and 1203." Mot. at 5.

STANDARD OF REVIEW

The Federal Rules of Civil Procedure empower district courts to enter default judgment against a defendant that fails to defend its case. Fed. R. Civ. P. 55(b)(2); Keegel v. Key West & Caribbean Trading Co., 627 F.2d 372, 375 n.5 (D.C. Cir. 1980). While federal policy generally favors resolving disputes on the merits, default judgment is appropriate "when the adversary process has been halted because of an essentially unresponsive party." Mwani v. bin Laden, 417 F.3d 1, 7 (D.C. Cir. 2005) (internal quotation marks omitted).

Obtaining default judgment is a two-step process. Fed. R. Civ. P. 55(a-b). First, the plaintiff must request that the Clerk of Court enter default against the party that has failed to plead or otherwise defend. Fed. R. Civ. P. 55(a). The Clerk's entry...

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