Griffin v. Google

In the United States District Court

for the Southern District of Georgia

Brunswick Division

CASIMIR P. GRIFFIN,

Plaintiff,

2:19-CV-132

v.

TAMMY JERNIGAN,

Defendant.

ORDER

This is a pro-se action for copyright infringement, breach of

contract, and various tort claims. See generally Dkt. No. 2. The

only defendant successfully served after frivolity review—

Defendant Tammy Jernigan—failed to answer, and so, pursuant to

Plaintiff Casimir Griffin’s motion, the Clerk entered default.

Dkt. No. 22. Plaintiff moved for default judgment and—at the

Court’s instruction, dkt. no. 25 at 3—filed a brief in support of

the damages he seeks. Dkt. Nos. 23, 32. On September 21, 2022,

the Court held a hearing to consider any evidence of damages.

Notice was provided to Plaintiff who, given his location out of

town, requested to proceed telephonically. The Court granted his

request. Dkt. No. 35. So too, the Court directed the U.S.

Marshal to serve Defendant Jernigan at the address at which she

was originally found. Dkt. No. 35. Defendant had left that

address and could not be located. Dkt. No. 36. For the reasons

discussed below, Plaintiff’s motion for default judgment, dkt. no.

23, is GRANTED. Defendant is ORDERED to pay $100 in nominal

damages and $10,000 in statutory damages to Plaintiff, as well as

return the subject manuscripts and DISCONTINUE any and all efforts

to market or profit from Plaintiff’s works.

BACKGROUND

Factual Background

According to the Complaint, in 2016, Plaintiff began

discussing a book publishing deal with Defendant. Dkt. No. 2 at

6. Defendant owned a company called “Creative Inspirations

Imprint.” Id. Her partner, Henry Cambell, ostensibly owned a

company called “Harddrive Publishing Imprint.” Id. The publishing

contract required Plaintiff to provide a manuscript every six

months until all five books were released—calling for the first

book to be released in 2018. Id. at 6–7. The Complaint alleges

that Plaintiff provided three books up front (two via Gmail and

one by regular mail). Id. at 6. Plaintiff was also asked by

Defendant to do a book cover—which he did, posting the cover to

Facebook and Instagram. Id.

The Complaint further alleges that problems started when

there were delays in publishing the first book. Id. at 7.

Defendant said she had decided to re-edit the book, but weeks went

by without Plaintiff receiving the edits. Id. Defendant assured

Plaintiff that the editing was done and that he would soon receive

the edited version—but it didn’t come. Id. Plaintiff called

Defendant, who said the manuscript had been returned to her because

he had not picked it up, but she assured him she would re-send it

if he would pay for the postage. Id. Plaintiff became suspicious,

and, after investigating, determined that Defendant and Cambell

were “extremely new” to the publishing business and that “Hard

Drive Publishing” was not a real company. Id. Plaintiff and

Defendant agreed that Defendant would not publish any of the books

and would instead return the manuscripts and erase her copies.

Id.

Shortly after, Plaintiff was incarcerated for probation

violations. Id. The Complaint alleges that during his

incarceration, Plaintiff got back in contact with Defendant—who

now agreed that Cambell was “suspect” and confirmed that she had

cut ties with him. Id. at 7–8. Defendant said that she had

“invested too much into [Plaintiff’s] book to just walk away[.]”

Id. at 8. Defendant wanted payment for the book cover (including

an alternate cover she had apparently made) and editing costs

before she would return the manuscripts. Id. Plaintiff

“question[ed] [her] motives” and warned her that he had copyrighted

all of his works. Id. Defendant “got mad” and “told [Plaintiff]

to call her back with a good address that she [could] send the

manuscripts to,” insisting that “[they] were done.” Id. A similar

call took place several weeks later, this time with Plaintiff’s

sister on the line, recording the call. Id.

The Complaint further alleges that after Plaintiff was

released, he got back in touch with Defendant. Id. Defendant

“refused to walk away from the situation without publishing the

book,” insisting she had “wasted all she had on the project” and

stating that the book was “ready to be released on Amazon.” Id.

“She kept refusing to send the manuscripts” and even “emailed

[Plaintiff] a new contract via Google” in January 2018. Id. at 8–

9. The new contract called for the profits to be split “50/50.”

Id. at 9.

For reasons he does not explain in the Complaint, Plaintiff

signed and mailed the new contract back to Defendant. Id. The

Complaint alleges that the book, “Project Mayhem,” was published

and listed on Amazon Kindle in May 2018 and published in paper two

months later, but Plaintiff never received any money from

Defendant. Id. at 9–10. Defendant apparently told Plaintiff that

he would receive his money in a Pay-Pal account, but he never did.

Id. at 9. When Plaintiff confronted her about the money, Defendant

told Plaintiff to “take [her] to court”; Defendant said she had

done all the promotion herself, so she was “entitled to all the

funds for her promotion work[.]” Id. Defendant apparently told

Plaintiff that “she won’t pay [Plaintiff] any funds for any of

[his] book sales unless she is 100% sure that the sales generated

are from [his] promotions[.]” Id.

The complaint does not clearly say whether Plaintiff

rescinded the licensing agreement at this point—only that

Defendant refused to pay Plaintiff what he was due under the

licensing agreement, see dkt. no. 2 at 10—but Plaintiff clarified

in his brief regarding damages that he did tell “[Defendant] to

stop selling his book, Project Mayhem, and to take it down from

all sites.” Dkt. No. 32 at 3.1 Defendant did not, instead

“continu[ing] to sell [his] book[.]” Id.

Procedural Background

Plaintiff filed this lawsuit, mainly alleging that Defendant

infringed on his “Project Mayhem” copyright and breached their

1 Since that assertion is consistent with the allegations in the

complaint itself, see dkt. no. 2 at 7 (alleging that the parties

“agreed [Defendant] would not publish any of [Plaintiff’s] books

and she would mail [ ] back everything”), and courts generally

construe pro se pleadings “liberally,” see Dempsey v. Elmore, No.

407-141, 2008 WL 4491475, at *1 (S.D. Ga. Oct. 3, 2008), it would

be inappropriate to refuse to consider Plaintiff’s assertion that

he rescinded the publishing contract.

publishing contract. Dkt. No. 2 at 10.2 Per the Court’s order on

frivolity review, Plaintiff also asserted claims for fraud,

conspiracy, negligence, and “trespass to property” (better

understood as conversion). Dkt. No. 12 at 2.

Plaintiff also sued various other defendants alleging a host

of other claims. See generally Dkt. No. 2. Those defendants

included Google, Amazon (as well as its CEO, Jeff Bezos), Facebook,

Instagram, and LinkedIn, as well as fifty Jane and John Does (with

an unspecified relationship to the case), dkt. no. 2 at 1—all of

whom were dismissed on frivolity review, dkt. no. 10 at 8–9; dkt.

no. 12. The other claims—in brief—included various constitutional

rights, “abuse of process,” mail, wire, and bank fraud, “strict

liability,” defamation, some sort of qui tam suit, and “taxes owed

. . . per 26 U.S.C. § 165.” See Dkt. No. 2 at 11. Those were

also dismissed on frivolity review. Dkt. No. 10 at 9–11; Dkt. No.

12. Attempts to serve the remaining Defendant, Henry Cambell,

were unsuccessful, dkt. nos. 14 and 15, and he has been dismissed

without prejudice, dkt. nos. 28, 31.

Process was served on Defendant, dkt. no. 14, and her deadline

to answer passed on July 10, 2021. A little over four months after

2 Plaintiff originally filed suit in the Southern District of New

York, but the case was transferred to this court based on venue

requirements. Dkt. No. 5.

that, the Court granted Plaintiff’s motion to enter default against

Defendant. Dkt. No. 21; see also Dkt. No. 22.

Plaintiff promptly moved to enter default judgment. Dkt. No.

23. Finding that the claims here were not for a “sum certain,”

dkt. no. 25 at 1 & n.1, the Court ordered Plaintiff to follow up

with a filing “explaining and providing proof of the damages he

claims,” id. at 3; see also dkt. no. 32. The Court denied

Plaintiff’s request for subpoenas to discover information relevant

to his damages claims, finding that his requests were

“inappropriately broad, that [he had] not demonstrated a clear

need for the requested materials, and [that it was] apparent some

of the information he seeks could be obtained through other means.”

See Dkt. No. 29 at 4. Plaintiff moved for reconsideration, see

dkt. no. 33, but never proposed a narrower subpoena.

LEGAL STANDARD

“When default has been entered on a claim that is not for a

‘sum certain’ or a ‘sum that can be made certain by computation,’

the party seeking the entry of default judgment ‘must apply [for

it] to the court.’” Griffin v. Jernigan, No. 2:19-CV-132, 2022 WL

1151281, at *1 (S.D. Ga. Mar. 24, 2022) (quoting Fed. R. Civ. P.

55(b)(1), (2)) (citations omitted).

“In a case seeking damages, that analysis proceeds in two

parts. First, final judgment may be entered if the pleadings state

a substantive cause of action and contain a sufficient basis to

support the relief sought.” Id. (emphasis in original) (citing

Tyco Fire & Sec., LLC v. Alcocer, 218 F. App’x 860, 863 (11th Cir.

2007)). To that end, “[t]he defendant, by his default, admits the

plaintiff’s well-pleaded allegations of fact [and] is concluded on

those facts by the judgment,” but he “is not held to admit facts

that are not well-pleaded or to admit conclusions of law.”

Nishimatsu Constr. Co., Ltd. v. Houston Nat’l Bank, 515 F.2d 1200,

1206 (5th Cir. 1975). Second, “if the plaintiff seeks damages,

then the court ‘must make certain’ that there is a legitimate basis

for any damage award it enters.” Griffin, 2022 WL 1151281, at *1

(quoting Whitman v. Hinton, No. 4:18-cv-101, 2019 WL 3776472, at

*2 (S.D. Ga. Aug. 9, 2019)). “Unlike well-pleaded allegations of

fact, allegations relating to the amount of damages are not

admitted by virtue of default; rather, the court must determine

both the amount and character of damages.” Id. (quoting Faria v.

Lima Inv. Sols., LLC, No. 6:19-cv-535, 2019 WL 3044033, at *2 (M.D.

Fla. June 24, 2019), report and recommendation adopted, 2019 WL

3037796 (July 11, 2019)).

DISCUSSION

Plaintiff is entitled to a default judgment. His substantive

allegations—which, in this posture, the Court must credit as true—

state a cause of action. As for the remedy, Plaintiff has failed

to present competent proof of the amount of damages—but he is

nonetheless entitled to nominal damages, statutory damages, and an

injunction.

I. Plaintiff is entitled to default judgment.

A. Copyright Infringement

Copyright infringement claims have two elements: the

plaintiff must possess a valid copyright, and the defendant must

have copied the “[original] constituent elements of the

copyrighted work[.]” Calhoun v. Lillenas Publ’ng, 298 F.3d 1228,

1232 (11th Cir. 2002) (quoting Feist v. Pub’ns, Inc. v. Rural Tel.

Serv. Co., 499 U.S. 340, 361 (1991)).

Plaintiff alleges—and the Court must take as true for present

purposes—that he has a valid copyright in the book “Project

Mayhem.” Dkt. No. 2 at 8.3 And while Plaintiff does not elaborate

on the infringement claim in his request for a default judgment,

it is clear enough that the claim derives from Defendant publishing

and (potentially) profiting from the copyrighted work. Id. at 10.

While Defendant initially had permission to do that, Plaintiff

alleges that he rescinded that licensing agreement when Defendant

failed to return his manuscripts or, later on, pay his share of

the royalties—and yet she persisted. See Dkt. No. 2 at 7 (alleging

3 Plaintiff also suggests that he has copyrights on the other works

that he delivered to Defendant, but he does not identify any

infringing conduct regarding those copyrights.

the parties “agreed [Defendant] would not publish any of

[Plaintiff’s] books and she would mail [ ] back everything”); Dkt.

No. 32 at 3 (Plaintiff told Defendant “to stop selling his book,

Project Mayhem, and to take it down from all the sites” but she

did not).

Crediting Plaintiff’s allegations in this default posture,

that is enough to state a claim for copyright infringement against

Defendant. See Jacob Maxwell, Inc. v. Veeck, 110 F.3d 749, 753

(11th Cir. 1997) (“once a non-breaching party to an express

copyright license obtains and exercises a right of rescission by

virtue of a material breach of the agreement, any further

distribution of the copyrighted material would constitute

infringement” (emphasis omitted) (quoting Fosson v. Palace

(Waterland), Ltd., 78 F.3d 1448, 1455 (9th Cir. 1996))); see also

3 M. Nimmer & D. Nimmer, Nimmer on Copyright § 10.15[A], at 10–

125–26 (1996) (“Upon such rescission, the assignment or license is

terminated and the copyright proprietor may hold his former grantee

liable as an infringer for subsequent use of the work.”).

B. Breach of Contract

To show a breach of contract, Plaintiff must show a breach,

damages, and a right to complain about the breach. Norton v.

Budget Rent A Car Sys., Inc., 705 S.E.2d 305, 306 (Ga. Ct. App.

2010). The core of Plaintiff’s complaint, of course, is that

Defendant never paid him the proceeds to which he was entitled

under the publishing agreement. Dkt. No. 2 at 9–10. Thus, the

allegations here track the basic requirements for a breach of

contract, and Defendant has alleged a prima facie case of a breach

of contract.4

C. Fraud

So too, Plaintiff pleads enough facts for a fraud claim. “The

five elements of fraud . . . are (1) false representation made by

the defendant; (2) scienter; (3) an intention to induce the

plaintiff to act or refrain from acting in reliance by the

plaintiff; (4) justifiable reliance by the plaintiff; (5) damage

to the plaintiff.” Johnson v. GAPVT Motors, Inc., 663 S.E.2d 779,

783 (Ga. Ct. App. 2008) (quoting City Dodge v. Gardner, 208 S.E.2d

794, 797 n.1 (Ga. 1974)). To this end, Plaintiff alleges that

Defendant misrepresented her and Cambell’s publishing experience,

and the credentials of the publishing company, for the purpose of

inducing Plaintiff to enter the publishing contract. Dkt. No. 2

at 6–7. As a result, the complaint alleges, Plaintiff did enter

4 Plaintiff alleges that he had a contract with Defendant to publish

five of his books, but he does not appear to assert a claim for

the breach of that contract, later disclaiming that contract as

“invalid” and “void.” Dkt. No. 2 at 7–8. In any event, Plaintiff

does not identify any damages from that breach, see id., so he

would not be entitled to default judgment on that contract

regardless.

the agreement and was not paid for his work on the books. Id. at

6, 9–10. Thus, Plaintiff has pled a facially viable fraud claim.

D. Conspiracy

Since Plaintiff is entitled to default judgment on his fraud

claim and has alleged that Defendant and Cambell conspired to

commit the fraud, dkt. no. 2 at 10, he has also stated a cause of

action for civil conspiracy. Mustaqeem-Graydon v. SunTrust Bank,

573 S.E.2d 455, 461 (Ga. Ct. App. 2002) (“To recover damages for

a civil conspiracy claim, a plaintiff must show that two or more

persons, acting in concert, engaged in conduct that constitutes a

tort.” (citing Savannah Coll. of Art & Design, Inc. v. Sch. of

Visual Arts of Savannah, Inc., 464 S.E.2d 895, 896 (Ga. Ct. App.

1995))).

E. Conversion

So too, Plaintiff’s allegation that Defendant took his

copyrighted works and—having failed to publish them as agreed—

refused to return them, dkt. no. 2 at 8, states a claim for

conversion. Trey Inman & Assocs. v. Bank of Am., N.A., 702 S.E.2d

711, 716 (Ga. Ct. App. 2010) (“Conversion consists of an

unauthorized assumption and exercise of the right of ownership

over personal property belonging to another, in hostility to his

rights.” (quoting Md. Cas. Ins. Co. v. Welchel, 356 S.E.2d 877,

880 (Ga. 1987))).5

II. Plaintiff has not proven any compensatory damages, but he

is entitled to nominal and statutory damages.

Having determined that default judgment must be entered, the

Court “turns to the question of the type and amount of damages.”

Whitman, 2019 WL 3776472, at *2. As discussed above, “[e]ven where

the Court finds that default judgment is appropriate, it must make

certain ‘that there is a legitimate basis for any damage award it

enters.’” Id. (alteration accepted) (quoting Anheuser-Busch, Inc.

v. Philpot, 317 F.3d 1264, 1266 (11th Cir. 2003)); see also Faria,

2019 WL 3044033, at *2 (“Unlike well-pleaded allegations of fact,

allegations relating to the amount of damages are not admitted by

5 The Court declines, however, to enter judgment on Plaintiff’s

negligence claim. The basic elements of any negligence claim are

“(1) a duty . . . requiring the actor to conform to a certain

standard of conduct . . . (2) a failure . . . to conform to the

standard required; (3) a reasonabl[y] close causal connection

between the conduct and the resulting injury; and (4) actual loss

or damage resulting to the interests of [another.]” Marquis

Towers, Inc. v. Highland Grp., 593 S.E.2d 903, 906 (Ga. Ct. App.

2004). Plaintiff’s complaint, however, seems to accuse Defendant

of intentional torts—not negligence. See Dkt. No. 2 at 10. The

frivolity review allowed the negligence claim to proceed against

Defendant because she “failed to use reasonable care by bringing

Mr. Cambell in on the project even though he did not actually own

a publishing company,” dkt. no. 10 at 8—but the only references to

negligent hiring and supervision in the complaint are directed at

Google, Amazon, Instagram, and LinkedIn for failure to screen

whether [Defendant] and Cambell’s companies “were legal

entities[.]” Dkt. No. 2 at 10.

virtue of default; rather, the court must determine both the amount

and character of damages.”).

A. Compensatory Damages

Plaintiff has not offered competent evidence showing the

amount of his damages. See generally Dkt. No. 32. Despite

alleging that Defendant has failed to pay Plaintiff’s share of

royalties or otherwise return his books, Plaintiff offers no

concrete evidence as to the amount of damages. Id. at 5-6. He

does not identify (even approximately) how many books were sold,

what the sales price was,6 what comparable books might expect to

earn on the market, or even what his own costs in producing the

works might have been. See id.

The Court, therefore, has no legitimate basis for anything

more than nominal damages on Plaintiff’s contract and tort claims.

See, e.g., McCaa v. Edwards, No. 7:12-CV-2688, 2015 WL 4459398, at

*2 (N.D. Ala. July 21, 2015) (granting nominal damages where

liability had been found but no damages proven); Int’l Auto

Logistics, LLC v. Vehicle Processing Ctr. of Fayetteville, Inc.,

No. 2:16-CV-10, 2017 WL 149815, at *9 (S.D. Ga. Jan. 13, 2017)

(same); see also Brock v. King, 629 S.E.2d 829, 834-35 (Ga. Ct.

App. 2006) (“In every breach of contract the injured party has a

6 At the damages hearing, Plaintiff did relay that he was aware

that some books had sold and that he bought one for approximately

$6.00.

right to damages, and if there has been no actual damage, the

injured party may recover nominal damages sufficient to cover the

costs of bringing the action.” (internal quotation marks

omitted)); Holmes v. Drucker, 411 S.E.2d 728, 730 (Ga. Ct. App.

1991) (“Where there is fraud or breach of a legal or private duty

accompanied by any damage, the law gives a right to recover . . . .

[N]ominal damages[ may be] given as compensation for injury

done.”); Callahan v. Panfel, 395 S.E.2d 80, 82 (Ga. Ct. App. 1990)

(holding nominal damages were proper in a case alleging conversion

of an earnest money deposit).

Georgia law holds that “the sum awarded as nominal damages

may, according to circumstances, vary almost indefinitely”—but

$100 is a common award. Int’l Auto Logistics, 2017 WL 149815, at

*9 (quoting First Fed. Sav. & Loan Ass'n of Atlanta v. White, 309

S.E.2d 858, 859 (Ga. Ct. App. 1983)). In the absence of proof as

to the amount of Plaintiff’s damages, the Court hereby ORDERS that

Defendant Tammy Jernigan pay $100 in nominal damages for

Plaintiff’s breach of contract, fraud, conspiracy, and conversion

claims.

B. Statutory Damages

For purposes of the copyright infringement claim, though,

Plaintiff asks the Court to award the maximum amount of statutory

damages, $150,000. Dkt. No. 32 at 4-5 (citing 17 U.S.C. § 504(c)

(“the copyright owner may elect . . . to recover, instead of actual

damages and profits, an award of statutory damages for all

infringements involved in the action”)). “The award of statutory

damages is especially fitting in the default judgment context,”

since there will generally have been no discovery in the case.

Evony, LLC v. Holland, No. 2:11-cv–00064, 2011 WL 1230405, at *3

(W.D. Pa. Mar. 31, 2011).

Courts have “wide discretion in determining the amount of

statutory damages to be awarded[.]” Harris v. Emus Recs. Corp.,

734 F.2d 1329, 1335 (9th Cir. 1984); cf. Gladys Music v. Ed Smith

Prod., Ltd., No. 94-CV-429, 1994 WL 705265, at *3-4 (N.D.N.Y. Dec.

6, 1994). Indeed, where an infringement is willful, the court has

discretion to increase the statutory maximum to $150,000. 17

U.S.C. § 504(c)(2). Plaintiff’s assertion that Defendant

knowingly ignored his rescission of the licensing agreement and

continued to publish and profit from his book, dkt. no. 32 at 3,

suffices to show willfulness. See Yellow Pages Photos, Inc. v.

Ziplocal, LP, 795 F.3d 1255, 1271-72 (11th Cir. 2015) (“willfulness

under the Copyright Act ‘means that the defendant knows his actions

constitute an infringement; the actions need not have been

malicious’” if the defendant “reckless[ly] disregard[s]” the

possibility that he is infringing (internal quotation marks

omitted) (quoting Cable/Home Commc'n Corp. v. Network Prods.,

Inc., 902 F.2d 829, 851 (11th Cir. 1990); Graper v. Mid-Continent

Cas. Co., 756 F.3d 388, 394-95 & n.7 (5th Cir. 2014))); cf. Peer

Int’l Corp. v. Pausa Recs., Inc., 909 F.2d 1332, 1336 (9th Cir.

1990). Indeed, default itself is often enough to show willfulness.

See, e.g., Broadcast Music, Inc. v. Spring Mount Area Bavarian

Resort, Ltd., 555 F. Supp. 2d 537, 542 (E.D. Pa. 2008); Sony Music

Ent. v. Cassette Prod., Inc., No. CV 92–4494, 1996 WL 673158, at

*5 (D.N.J. Sept. 30, 1996); Hounddog Prods., LLC v. Empire Film

Grp., Inc., 826 F. Supp. 2d 619, 631 (S.D.N.Y. 2011).

In deciding the proper amount of statutory damages, courts

typically consider three factors:

(1) any expenses saved or profits gained in connection with

the infringement;

(2) any revenue lost by the copyright holder; and

(3) whether the infringement was willful and knowing as

opposed to accidental or innocent.

See, e.g., Broadcast Music, Inc. v. Golden Horse Inn Corp., 709 F.

Supp. 580, 581 (E.D. Pa. 1989); Universal City Studios, Inc. v.

Ahmed, No. CV 93-3266, 1994 WL 185622, at *3 (E.D. Pa. May 13,

1994); Adventure Creative Grp., Inc. v. CVSL, Inc., 412 F. Supp.

3d 1065, 1072 (D. Minn. 2019); see also Gladys Music, 1994 WL

705265, at *3-4 (considering the public interest in ensuring the

integrity of copyright laws, as well). “In weighing these factors,

most courts . . . have focused largely on the element of intent,”

since information about profits and losses can be hard to come by

when the defendant does not show up to defend the case, “and the

per infringement award tends [ ] to escalate[ ] in direct

proportion to the blameworthiness of the infringing conduct.”

Original Appalachian Artworks, Inc. v. J.F. Reicher, Inc., 658 F.

Supp. 458, 465 (E.D. Pa. 1987) (quotation omitted).

Still, it stands to reason that statutory damages “should

[generally] bear some relation to actual damages[.]” Ass’n of Am.

Med. Colls. v. Mikaelian, No. CV 83-2745, 1986 WL 332, at *16 (E.D.

Pa. Mar. 18, 1986) (citing RSO Records, Inc. v. Peri, 596 F. Supp.

849, 862 (S.D.N.Y. 1984)); cf. DeYoung v. Royce Wear, LLC, No.

1:20-CV-549, 2021 WL 5496386, at *5 (W.D. Mich. Mar. 29, 2021)

(“there must be some tie to economic reality”). And a maximum

award is typically reserved for “egregious circumstances.”

Granger v. One Call Lender Servs., LLC, No. CV 10-3442, 2012 WL

3065271, at *3 (E.D. Pa. July 26, 2012) (quoting Joe Hand

Promotions v. Burg's Lounge, 955 F. Supp. 42, 44 (E.D. Pa. 1997));

cf. AF Holdings LLC v. Bossard, 976 F. Supp. 2d 927, 930 (W.D.

Mich. 2013) (“[M]erely proving willfulness does not automatically

entitle a copyright holder to the statutory maximum. The Court

retains broad discretion to determine an appropriate damages

figure in each case.”).

Because there is no evidence regarding the amount of damages

suffered, the Court cannot enter a maximum or near-maximum award.

Again, there is no evidence in the record about how many books

Defendant may have sold, what the profits might be, any lost

goodwill or misattribution of credit Plaintiff might suffer, or

even what Plaintiff’s production costs were. Of course, as

Plaintiff points out, that fact does not necessarily preclude

granting a large award of statutory damages; after all, Defendant’s

failure to answer means Plaintiff has had no real opportunity to

engage in discovery. See Dkt. No. 32 at 5 (collecting cases). In

that same vein, Plaintiff’s only attempt to gather relevant

information from other sources was insupportably broad, dkt. nos.

29, 33, and he did not propose another. All that being so, it

hardly seems a sound use of discretion to blindly impose

potentially ruinous liability.

Nonetheless, the default judgment here creates “the need to

compensate [Plaintiff] for his losses and to deter . . . others

from violating the copyright laws in the future.” Granger, 2012

WL 3065271, at *3 (quoting Palmer v. Slaughter, No. CV 99–899–GMS,

2000 WL 1010261, at *4 (D. Del. July 13, 2000)). Courts awarding

statutory damages pursuant to a default judgment have granted

awards across the spectrum. See, e.g., DeYoung, 2021 WL 5496386,

at *6 (cataloging statutory damages awards ranging from $5,000 to

$50,000); Granger, 2012 WL 3065271, at *3 (awarding $12,000 for a

single violation); Universal City Studios, 1994 WL 185622, at *4

(awarding the then-$20,000 maximum under 17 U.S.C. § 502(c)(1));

Curtis v. Illumination Arts, Inc., 33 F. Supp. 3d 1200, 1218-20

(W.D. Wash. 2014) (awarding $50,000 to authors of children’s books

against a book publisher in breach of publishing agreement); RMC

Pub., Inc. v. Doulous PM Training, No. 3:07-CV-2139, 2010 WL

742575, at *4-5 (N.D. Tex. Mar. 3, 2010) (awarding $100,000); Teri

Woods Pub. LLC v. Williams, No. 12-4854, 2013 WL 6179182, at *3-4

(E.D. Pa. Nov. 25, 2013) (awarding the full $150,000); VMG Salsoul

LLC v. Birdsong, No. 11-10559, 2013 WL 12138715, at *4-5 (C.D.

Cal. Sep. 23, 2013) (same); Hounddog Prods., LLC, 826 F. Supp. 2d

at 624-25, 632 (same); Adventure Creative Grp., 412 F. Supp. 3d at

1072 (awarding the full $150,000 for each of two infringements).

The infringement in this case is willful—but it only became

that (and, indeed, infringement at all) toward the end of this

transaction, when Plaintiff terminated the agreement but Defendant

refused to stop marketing the book. The information available

suggests “that [Defendant] has continued [her] infringement,” and

that indeed urges a significant award is appropriate. Granger,

2012 WL 3065271, at *3; cf. Teri Woods Pub., 2013 WL 6179182, at

*3. So, while Defendant’s refusal to either pay Plaintiff or

return the manuscripts is troubling, the Court has no way of

knowing whether Defendant has profited to any degree following the

rescission of the licensing agreement. See, e.g., Granger, 2012

WL 3065271, at *3 (relying on “[the] lack of evidence of any actual

loss to [the p]laintiff”); cf. Curtis, 33 F. Supp. 3d at 1218

(awarding $50,000 per violation where “Plaintiffs' evidence with

respect to [profits and losses was] patchy at best”). Moreover,

the Court can, and, as discussed below, does order Defendant to

return the manuscripts and stop marketing “Project Mayhem”—which

disposes of the more verifiably-egregious aspects of the

infringement here.

All that being so, the Court ORDERS Defendant Tammy Jernigan

to pay $10,000 in statutory damages. Absent any indication of the

harm to Plaintiff, or the benefit to Defendant, the Court simply

cannot award more. See, e.g., id. at 1217-18 (awarding $50,000

statutory damages for infringement flowing from a breached

publishing agreement where the plaintiff demonstrated thousands of

dollars in lost royalties and the defendant had at least some

verifiable sales of the books). Judging by the fact that

Defendant’s publishing enterprise appears to be small, dkt. no. 2

at 6, this amount should suffice to deter Defendant and the public

in general from committing this sort of infringement in the future.

Plaintiff is also entitled to an injunction ordering the

return of his manuscripts and prohibiting further

exploitation of “Project Mayhem.”

Having entered default judgment on Plaintiff’s copyright

claim, it is also appropriate to order Defendant to return

Plaintiff’s manuscripts and discontinue any and all efforts to

market or profit from these works. See 17 U.S.C. § 502(a) (the

court may “grant temporary and final injunctions on such terms as

it may deem reasonable to prevent or restrain infringement of a

copyright”); Dkt. No. 23 at 5 (requesting other appropriate

relief).

“Permanent injunctive relief is appropriate where a plaintiff

demonstrates: (1) it has already suffered irreparable injury; (2)

there is no adequate remedy at law; (3) the balance of hardships

favors an equitable remedy; and (4) [the] issuance of an injunction

is in the public's interest.” Cadence Design Sys., Inc. v. Pounce

Consulting, Inc., No. 17-CV-04732, 2019 WL 1768619, at *10 (N.D.

Cal. Apr. 1, 2019) (quoting eBay, Inc. v. MercExchange, LLC, 547

U.S. 388, 391-92 (2006)).

Here, Defendant’s infringement on Plaintiff’s copyright

includes essentially a theft of the copyrighted material, itself.

That is an irreparable injury for which there is no adequate

remedy. See e.g., UMG Recordings, Inc. v. Blake, No. 5:06-cv-

00120-BR, 2007 WL 1853956, at *3 (E.D.N.C. June 26, 2007)

(“[i]rreparable injury is presumed when a plaintiff succeeds on

the merits” of an infringement claim); see also Broad. Music, Inc.

v. Prana Hosp., Inc., 158 F. Supp. 3d 184, 195 (S.D.N.Y. 2016)

(“monetary damages [are] inadequate where the defendant poses a

significant threat of future infringement” (citation omitted));

Cadence Design Sys., 2019 WL 1768619, at *10 (“Given Pounce USA's

knowledge of its violations and continued use of Cadence's

software, there is no adequate remedy at law to address the ongoing

damage and irreparable harm.”). The balance of equities and the

public interest both plainly support remedying that injustice.

Hermann Int’l, Inc. v. Hermann Int’l Europe, No. 1:17-cv-00073,

2021 WL 861712, at *22 (W.D.N.C. Mar. 8, 2021) (“By virtue of the

Defendants' default, the Defendants have not identified any harms

they might suffer as a result of the issuance of a permanent

injunction,” and of course infringers “have no cognizable right to

conduct their business with the unlawful use of the Plaintiffs'

intellectual property.”); EMI Apr. Music Inc. v. Rodriguez, 691 F.

Supp. 2d 632, 635 (M.D.N.C. 2010) (explaining that the public has

a strong interest in protecting intellectual property rights).

Thus, the Court ORDERS Defendant Tammy Jernigan to return the

manuscripts described in this action and DISCONTINUE any and all

efforts to market or profit from these works upon receipt of this

Order.

CONCLUSION

For these reasons, Plaintiff’s motion for default judgment,

dkt. no. 23, is GRANTED. Defendant Tammy Jernigan is hereby

ORDERED to pay $100 in nominal damages and $10,000 in statutory

damages to Plaintiff, and to return the subject manuscripts and

discontinue any and all efforts to market or profit from

these works. The Clerk is DIRECTED to mail a copy of this

Order to Defendant Tammy Jernigan at her last known address.

The Clerk is further DIRECTED to CLOSE this case.

SO ORDERED this 22nd day of September, 2022.

_________________________________

HON. LISA GODBEY WOOD, JUDGE

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA