Prepared Food Photos, Inc. v. Chi.-Mkt.-Distribs.
| Decision Date | 18 May 2023 |
| Docket Number | 1:22-cv-03299-CNS-MEH |
| Parties | PREPARED FOOD PHOTOS, INC. f/k/a ADLIFE MARKETING & COMMUNICATIONS CO., INC., Plaintiff, v. CHICAGO-MARKET-DISTRIBUTORS, INC. d/b/a CHICAGO MARKET, Defendant. |
| Court | U.S. District Court — District of Colorado |
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Prepared Food Photos, Inc. f/k/a Adlife Marketing & Communications Co., Inc. has filed a Motion for Default Judgment against Chicago-Market-Distributors, Inc. d/b/a Chicago Market (“Defendant”). ECF 12. The motion was referred to me for a Recommendation. ECF 16. No Response was filed by the defaulting party by the applicable deadline and the Motion is now ripe for review. As set forth below, I respectfully recommend that the Motion be granted. BACKGROUND
I. Procedural Background
On December 22, 2022, Plaintiff filed its Complaint in this action. The Complaint contains a single cause of action for copyright infringement against Defendant for unlawful use of a licensed and copyrighted photograph in its advertising. See ECF 1. On January 3, 2023, Defendant was served with a copy of the Summons and Complaint in this action. ECF 7. On February 14, 2023 following expiration of Defendant's response deadline, the Clerk entered a default against Defendant. ECF 11. The motion was filed on February 21, 2023. ECF 12. In the Certificate of Service, Plaintiff's counsel certifies that the motion and its attachments were served via U.S. Mail on Chicago-Market-Distributors, Inc. d/b/a Chicago Market, 1477 Carr Street, Lakewood, CO 80214. This is the Defendant's business registration address, and is the identical address set forth in the Summons, ECF 4, which was returned via Proof of Service, ECF 7. A hearing was held on March 15, 2023. ECF 17. Plaintiff's counsel attested that the service of the motion via mail was not returned. Defendant had notice of the hearing. ECF 22. The hearing was listed on the Court's publicly accessible calendar. Defendant did not appear. ECF 17 (Courtroom Minutes).
Attached to the motion are the following: 1) the Declaration of Rebecca Jones, Secretary of Plaintiff (the “Jones Decl.”), ECF 12-1; 2) Proposed Order, ECF 12-2; and 3) the unanswered Complaint, with attachments. These attachments include: 1) the Certificate of Registration of the Work with the Register of Copyrights dated August 26, 2016, ECF 1-1; and 2) a copy of the screenshot of Defendant's website, displaying the copyrighted Work, ECF 1-2. I also note that at the Court's direction, Plaintiff filed a supplemental memorandum regarding the Court's ability to take judicial notice of the Internet Archive Wayback Machine. ECF 18. The supplement includes a revised proposed Final Judgment and Permanent Injunction. ECF 18-1. These were also served on Defendant at the above-referenced address. ECF 18 at 3. Plaintiff filed an additional supplement on April 18, 2023, with attached Affidavit of Nathaniel E. Frank-White. ECF 29.
II. Factual Background
The Court makes the following findings, drawn from Plaintiff's well-pleaded allegations of the Complaint and uncontroverted record evidence presented at the hearing. In addition, the court accepts the undisputed facts set forth in any affidavits and exhibits. Purzel Video GmbH v. Martinez, 13 F.Supp.3d 1140, 1148 (D. Colo. 2014).
Plaintiff is in the business of licensing high-end, professional photographs for the food industry. Plaintiff generally operates on a subscription basis whereby it charges its clients (generally, grocery stores, restaurant chains, food service companies, etc.) a minimum monthly fee of $999.00 (https://preparedfoodphotos.com/featured-subscriptions/) for access to its library of professional photographs. Plaintiff's standard licensing terms require a minimum of a twelve (12) month licensing commitment (https://preparedfoodphotos.com/terms.of.use.php) to avoid scenarios whereby a licensee pays for one (1) month of access, downloads the entire library of 20,000+ photographs, and immediately terminates the license agreement. Plaintiff's business model relies on its recurring monthly subscription service and the income derived therefrom such that Plaintiff can continue to maintain its portfolio.
Plaintiff has numerous paying subscribers paying monthly subscription fees ranging from $999.00/month to $2,500.00/month, depending on the number of end users for which Plaintiff's photographs are to be used. The bulk of Plaintiff's subscribers are professional ad agencies that develop weekly ads/grocery store websites for their own end users, i.e., grocery stores, meat and dairy sellers, etc. Plaintiff owns each of the photographs available for license on its website and serves as the licensing agent with respect to licensing such photographs for limited use by Plaintiff's customers. To that end, Plaintiff's standard terms include a limited, non-transferable license for use of any photograph by the customer only. Plaintiff's license terms make clear that all copyright ownership remains with Plaintiff and that its customers are not permitted to transfer, assign, or sub-license any of Plaintiff's photographs to another person/entity.
This lawsuit concerns one (1) photograph titled “ColdCutAsst014” (the “Work”) owned by Plaintiff for which Plaintiff serves as the licensing agent. The Work is available for license on the terms described supra. Pursuant to a work-for-hire agreement with the author that transferred all rights and title in the photograph to Plaintiff, Plaintiff registered the Work with the Register of Copyrights on August 26, 2016. It was assigned Registration No. VA 2-014-921. A copy of the Certificate of Registration pertaining to the Work is attached to the Complaint as Exhibit A thereto.
Defendant is a Polish specialty food market specializing in a variety of smoked meats, cheeses, and breads. Defendant advertises/markets its business primarily through its website.[1]social media,[2] and other forms of advertising. On a date prior to Plaintiff's above-referenced copyright registration of the Work, Defendant published the Work on its website as follows:
(IMAGE OMITTED)
A true and correct copy of screenshots of Defendant's website, displaying the copyrighted Work, are attached to the Complaint as Exhibit B.
Defendant is not and has never been licensed to use or display the Work. Defendant never contacted Plaintiff to seek permission to use the Work in connection with its website/advertising or for any other purpose - even though the Work that was copied is clearly professional stock photography that would put Defendant on notice that the Work was not intended for public use. Defendant utilized the Work for commercial use - namely, in connection with the marketing of its business. Defendant located a copy of the Work on the internet and, rather than contact Plaintiff to secure a license, simply copied the Work for its own commercial use.
Plaintiff's primary business is the creation of new photo/video content and licensing such content to supermarkets, ad agencies, and the like. To ensure that Plaintiff's intellectual property is not being misappropriated and its value is therefore lowered, Plaintiff employs a full-time paralegal and other staff to perform reverse-image searches using Google Images (https://www.google.com/imghp?hl=en) and to review grocery store electronic/print ads to determine whether Plaintiff's images are being misused. Plaintiff's staff generally searches using a rotating sub-set of photographs that may be illegally/improperly published by non-licensees. Given the volume of Plaintiff's library, Plaintiff was reasonably unable to discover Defendant's improper use of the Work at issue in this lawsuit prior to the aforementioned date of discovery.
Through its ongoing efforts to identify unauthorized use of its photographs, Plaintiff first discovered Defendant's unauthorized use/display of the Work on February 16, 2022.
Following Plaintiff's discovery of Defendant's infringement, Plaintiff retained counsel to pursue this matter. Plaintiff's counsel sent via Federal Express and e-mail one (1) infringement notice to Defendant to notify it of the impermissible use. Thereafter, Plaintiff's counsel made multiple attempts to communicate with Defendant via e-mail and telephone. Finally, on November 18, 2022, a staff member at counsel's office called Defendant and spoke to ‘Vic' who was represented himself as an owner who was in charge of Defendant's website.
During that call, Defendant (through ‘Vic') proceeded to berate undersigned counsel's staff member by stating verbatim: “If you wanna come down here to fight me, then fight me” and repeatedly calling the staff member a “f***ing bitch.” No further efforts were made to communicate with Defendant following this exchange, other than to provide notice of the default and default judgment hearing as required by law.
Federal Rule of Civil Procedure 55 governs motions for default judgment. After the Clerk's entry of default, a defendant no longer may defend a claim on the merits. Olcott v Delaware Flood Co., 327 F.3d 1115, 1125 (10th Cir. 2003) (quoting Jackson v. FIE Corp., 302 F.3d 515, 525 (5th Cir. 2002) ()); see also id. at 1124 (“Defendants do not have a constitutional right to a jury trial following entry of default.”).
Even after entry of default, however, it remains for the court to consider whether the unchallenged facts constitute a legitimate basis for the entry of a judgment. McCabe v Campos, No. 05-cv-00846-RPM-BNB, 2008 WL 576245,...
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