“[E]ven in a copyright infringement case, the plaintiff must demonstrate a 3 15 likelihood of irreparable harm as a prerequisite for injunctive relief.”
How later courts described this case
- “[E]ven in a copyright infringement case, the plaintiff must demonstrate a 3 15 likelihood of irreparable harm as a prerequisite for injunctive relief.”
Written by the judges who cited it.
The opinion
1 UNITED STATES DISTRICT COURT
2 NORTHERN DISTRICT OF CALIFORNIA
3
4 CHRIS CRISMAN, Case No. 20-cv-02723-JD
5 Plaintiff,
ORDER RE DEFAULT JUDGMENT
v.
6
Re: Dkt. No. 20
7 MASJA VAN DER HOOG,
Defendant.
8
9 This is a copyright infringement action brought by plaintiff Chris Crisman against
10 defendant Masja Van Der Hoog, d/b/a Aster Acupuncture (Aster), concerning the unlicensed use
11 of Crisman’s photograph on Aster’s website to promote its acupuncture, massage, and cupping
12 services in violation of the Copyright Act, 17 U.S.C. § 501. See Dkt. No. 1. Aster has failed to
13 appear in the action, and Crisman has moved for default judgment. Dkt. No. 20. The motion is
14 granted.
15 I. JURISDICTION & SERVICE
16 “In default judgment proceedings, the Court has an affirmative duty to consider whether it
17 has jurisdiction over the subject matter and parties to the case.” FormFactor, Inc. v. Mr. Prober
18 Tech. Inc., No. 13-CV-03688-JD, 2015 WL 1870236, at *1 (N.D. Cal. Apr. 23, 2015) (citing In re
19 Tuli, 172 F.3d 707, 712 (9th Cir. 1999)). Because this is a copyright infringement case, the Court
20 has subject matter jurisdiction under 28 U.S.C. § 1338(a). The Court also has personal jurisdiction
21 over Aster, which has its principal place of business in Oakland, California. See Goodyear
22 Dunlop Tires Operations v. Brown, 564 U.S. 915, 924 (2011). The complaint and default
23 judgment papers were served on July 13, 2021. See Dkt. 25.
24 II. DEFAULT JUDGMENT
25 “Under Federal Rule of Civil Procedure 55(b)(2), a party may apply to the Court for entry
26 of judgment by default against a defendant that has failed to defend against the action.” See
27 FormFactor, 2015 WL 1870236, at *2. “‘The district court’s decision whether to enter a default
1 1980)). The decision is based on the following factors:
2 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's
substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at
3 stake in the action; (5) the possibility of a dispute concerning material facts; (6)
whether the default was due to excusable neglect, and (7) the strong policy
4 underlying the Federal Rules of Civil Procedure favoring decisions on the merits.
5 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).
6 The main inquiries under the Eitel factors are the merits of the claim and the sufficiency of
7 the complaint, which are typically considered together, “because after the entry of default, well-
8 pleaded allegations in the complaint are deemed true, except as to the amount of damages.”
9 FormFactor, 2015 WL 1870236, at *2 (quoting Fair Hous. of Marin v. Combs, 285 F.3d 899, 906
10 (9th Cir. 2002)).
11 To state a claim for copyright infringement, a plaintiff “must show ownership of the
12 allegedly infringed material” and “must demonstrate that the alleged infringer violated at least one
13 exclusive right granted to copyright holders under 17 U.S.C. § 106.” FormFactor, 2015 WL
14 1870236, at *2 (cleaned up) (citing Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th
15 Cir. 2007)). Crisman has done so here. The complaint alleges that he registered the photograph in
16 2011, and that Aster copied it without permission in violation of Crisman’s exclusive right to
17 “reproduce the copyrighted work” under 17 U.S.C. § 106(1). Dkt. No. 1 ¶¶ 11-12, 15-18.
18 Consequently, these factors weigh in favor of default judgment.
19 The other Eitel factors also favor entry of default judgment. Crisman will be prejudiced if
20 default judgment is not granted because he will be left with no way to recover for Aster’s
21 infringement. Broad. Music, Inc. v. JMN Rest. Mgmt. Corp., No. 14-CV-01190-JD, 2014 WL
22 5106421, at *2 (N.D. Cal. Oct. 10, 2014) (“BMI”). The amount of money at stake here (Crisman
23 seeks between $25,000 to $150,000), is high for a single infringement, but the Court has discretion
24 to award $750 in statutory damages per infringement, see infra Section III.A. Because Aster has
25 not appeared, despite service and other attempts to engage her in this litigation, there is “no
26 indication that [the] default is due to excusable neglect, that the material facts are subject to
27 dispute, or that a decision on the merits will be possible.” Id.
III. THE RELIEF
1
Crisman asks for statutory damages, attorneys’ fees, and costs, with pre- and post-
2
judgment interest. Dkt. No. 20-1 at 6. He also seeks a permanent injunction pursuant to 17 U.S.C.
3
§ 502, enjoining Aster from further infringement.
4
A. Statutory Damages
5
A copyright infringement plaintiff may recover either actual damages or statutory damages
6
under 17 U.S.C. § 504(a). Crisman has proposed to recover the latter, in a minimum amount of
7
$25,000. Section 504(c) of the Copyright Act provides for statutory damages “in a sum of not less
8
than $750 or more than $30,000 as the court considers just,” per infringement. Id. § 504(c)(1).
9
Additionally, if the “infringement was committed willfully, the court in its discretion may increase
10
the award of statutory damages to a sum of not more than $150,000.” Id. § 504(c)(2).
11
Crisman has alleged willful infringement, and these allegations are deemed true upon
12
default. See Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 702 (9th Cir. 2008). Even
13
so, an award of $25,000 as Crisman urges is not automatic. The Court has “wide discretion in
14
determining the amount of statutory damages to be awarded, constrained only by the specified
15
maxima and minima” in the Copyright Act. BMI, 2014 WL 5106421, at *3 (quoting Harris v.
16
Emus Records Corp., 734 F.2d 1329, 1335 (9th Cir.1984)).
17
Crisman says that a reasonable statutory damages award would be five times his licensing
18
fee for the exclusive use of a photograph for a one-year term, which ranges from $2,500 to $5,000.
19
Dkt. No. 20 at 10. This multiplier is too steep for the record in this case. To start, there is a “rule
20
of thumb” in infringement cases that damages should be approximately three times the amount of
21
the estimated licensing fee. BMI, 2014 WL 5106421, at *3. The circumstances here do not
22
warrant a scarcity multiplier. The photograph at issue depicts two masseuses performing
23
massages, and although Crisman says it required “significant skill in lighting and postproduction,”
24
Dkt. No. 1 ¶ 6, the photo is not especially rare or unique. See Stockfood America, Inc. v. Sequoia
25
Wholesale Florist, Inc., No. 20-cv-03597-DMR, 2021 WL 4597080, at *5-6 (N.D. Cal. June 22,
26
2021) (scarcity multiplier denied where plaintiff made only a “bare assertion” of scarcity), report
27
and recommendation adopted, No. 20-CV-03507-JD, 2021 WL 4595128 (N.D. Cal. Oct. 06,
1 2021). In addition, only one act of infringement has been alleged, and Crisman acknowledges that
2 || Aster removed the infringing photograph from the website after getting a take-down letter from his
3 || lawyer. See Dkt. No. 14-2 (Grossbardt Decl.) ] 6.
4 Consequently, the Court concludes that a statutory damages award of $7,500 is reasonable.
5 || This amount exceeds Crisman’s typical licensing fee at the upper end, and is an amount
6 || proportionate to the claim and Aster’s removal of the photo from its website.
7 B. Injunctive Relief
8 The request for a permanent injunction is denied. The Copyright Act authorizes an
9 || injunction “on such terms as [the Court] may deem reasonable to prevent or restrain infringement
10 || of acopyright.” 17 U.S.C. § 502(a). A permanent injunction is not necessary to restrain future
11 infringement in this case. Aster took down the photograph in response to counsel’s letter, and
12 || Crisman has not proffered any evidence suggesting that Aster is likely to engage in future acts of
13 infringement of his works. See Flexible Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989,
14 || 998 (9th Cir. 2011) (“[E]ven in a copyright infringement case, the plaintiff must demonstrate a
3 15 likelihood of irreparable harm as a prerequisite for injunctive relief.”).
16 Cc. Attorneys’ Fees, Costs, and Interest
3 17 Attorneys’ fees and costs are recoverable under the Copyright Act. 17 U.S.C. § 505.
18 Crisman seeks $10,782.50 in attorney’s fees and $880.86 in costs. Dkt. No. 20-2 §§ 9, 11. These
19 || fees are reasonable under the circumstances, particularly in light of Aster’s failure to respond to
20 service and other outreach about the litigation. The billing records adequately support the requests
21 for fees and costs. Interest at the statutory rate is granted on the judgment from the date it is
22 || entered by the Court. See 28 U.S.C. § 1961. Pre-judgment interest is denied.
23 IT IS SO ORDERED.
24 Dated: November 2, 2021
25
JAMES MONATO
26 United #tates District Judge
27
28