JAMES C. FRANCIS, IV, Magistrate Judge.
TO THE HONORABLE JED S. RAKOFF, U.S.D.J:
The plaintiff, BWP Media USA Inc. d/b/a Pacific Coast News ("BWP"), brought this action for copyright infringement, alleging that the defendant, Uropa Media, Inc. ("Uropa"), displayed BWP's photographs without authorization on its website, www.thebosh.com.
Following entry of default judgment for the plaintiff, the case was referred to me for an inquest on damages, and a hearing was held on March 21, 2014. Although notice of the hearing was sent to Uropa's last known address, the defendant did not appear. The findings below are therefore based on the evidence presented at the hearing and on the information submitted by the plaintiff together with its Proposed Findings of Fact and Conclusions of Law ("Proposed Findings"). The Court has subject-matter jurisdiction over claims for copyright infringement pursuant to 28 U.S.C. § 1338 as well as federal question jurisdiction under 28 U.S.C. § 1331.
Photographs of Lindsay Lohan were taken on the set of "Scary Movie 5" on September 12, 2012, and the plaintiff registered them with the Copyright Office on October 30, 2012. (Affidavit of Paul Harris in Support of Motion for Default Judgment dated March 15, 2012 ("Harris Aff."), ¶¶ 3, 4). The photographs were registered as part of a larger set, with the copyright registration noting that the publication dates ranged from September 5 to September 12, 2012. (Copyright Registration No. VA0001836330 ("Copyright Registration"), attached as Exh. A to Further Supplemental Declaration of Craig B. Sanders in Support of Plaintiff's Motion for Default Judgment). On September 14, 2012, the defendant posted these photographs on its website without BWP's permission. (Harris Aff., ¶ 5). Accordingly, on November 5, 2013, BWP filed a complaint against Uropa, alleging direct, contributory, and vicarious copyright infringement, as well as inducement of infringement; it sought damages, an injunction, attorneys' fees, and costs. (Complaint). The summons and complaint were served on Uropa on December 16, 2013, but Uropa did not file an answer or otherwise respond. As a result, BWP moved for an entry of default on January 16, 2014 (Notice of Motion for Entry of Default Pursuant to FRCP 55(a)), which was granted on January 27, 2014. (Order of Entry of Default Pursuant to FRCP 55(a)).
Following a default, all factual allegations of the complaint, except those relating to damages, must be accepted as true.
In order to establish a copyright violation, a plaintiff must show "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original."
BWP alleges that Uropa infringed six of its copyrighted photographs, and requests $3,000 in statutory damages for each infringed image for a total of $18,000. (Proposed Findings at 2, ¶¶ 8-9 & at 3, ¶ 3). Provided that the work was registered prior to the infringement or within the first three months after publication, 17 U.S.C. § 412, a copyright owner may choose to recover statutory damages instead of actual damages. 17 U.S.C. § 504(c)(1). Here, as evidenced by the Copyright Registration, the photographs were taken and published on September 12, 2012. (Harris Aff., ¶ 3; Copyright Registration);
A statutory damages award may range from $750 to $30,000 for each infringement, based on what the court considers to be just.
The requested award of $3,000 per image is clearly within the lawful range, and, indeed, near the lower end. BWP has shown that this represents three times the amount of the licensing fee for each image. (Harris Aff., ¶ 6; Inquest Exh. A). In determining an award of statutory damages, a court may consider a variety of factors, including "the deterrent effect on the infringer and third parties" and "the revenue lost by the copyright holder."
BWP also seeks $6,992.50 in attorneys' fees. (Proposed Findings at 5, ¶ 2). The Copyright Act authorizes an award of full costs, including a "reasonable attorney's fee to the prevailing party." 17 U.S.C. § 505. As is the case with statutory damages, an award of attorneys' fees is only proper if the work was registered prior to the infringement or if the work was registered within three months after initial publication. 17 U.S.C. § 412.
An attorneys' fees award should be based on the court's determination of a "presumptively reasonable fee."
Determining a reasonable hourly rate involves "a case-specific inquiry into the prevailing market rates for counsel of similar experience and skill to the fee applicant's counsel [, which] may. . . include judicial notice of the rates awarded in prior cases and the court's own familiarity with the rates prevailing in the district."
Craig B. Sanders, a founding partner of Sanders Law, P.L.L.C., seeks fees at the rate of $525 per hour. (Proposed Findings at 2, ¶ 11). Mr. Sanders has over twenty years of experience, primarily in civil litigation. (Affidavit of Craig B. Sanders in Support of Plaintiff's Motion for Default Judgment dated Feb. 2013 ("Sanders Aff."), ¶ 14). One of the specialities of Sanders Law is copyright infringement litigation. (Sanders Aff., ¶ 17). Melissa A. Pirillo, another partner at Sanders Law, has been practicing law for nine years and seeks fees at the rate of $450 per hour. (Sanders Aff., ¶ 16; Proposed Findings at 3, ¶ 13). Both Mr. Sanders' and Ms. Pirillo's claimed hourly rates are reasonable in light of their experience. See Lucerne Textiles, Inc. v. H.C.T. Textiles Co., No. 12 Civ. 5456, 2013 WL 174226, at *6 (S.D.N.Y. Jan. 17, 2013) (determining that hourly rates ranging from $475 to $530 per hour were reasonable for partners with over twenty-five years of copyright experience and collecting cases);
Carissa M. Peebles, an associate at Sanders Law, has been practicing law for three years and is only admitted to practice in Florida, though her admission to the New York Bar is currently pending. (Sanders Aff., ¶ 15). Ms. Peebles seeks fees at the rate of $400 per hour. (Proposed Findings at 2, ¶ 12). This rate appears high for a third-year associate, especially considering that there is no representation that she has special expertise in copyright litigation.
Counsel have submitted contemporaneous time records, as required in this Circuit.
Finally, BWP requests costs in the amount of $475, representing a $400 filing fee and $75 for the cost of service of process. (Proposed Findings at 3, ¶ 14). However, no documentation has been provided in support of these expenses. Where counsel fail to proffer documentation, a court may either reduce the amount claimed or decline to award costs altogether.
For the reasons set forth above, I recommend that the plaintiff be awarded damages for copyright infringement in the amount of $18,000.00, attorneys' fees of $6,732.50, and costs of $400, for a total of $25,132.50.
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Jed S. Rakoff, Room 1340 and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.