Jeremiah v. 5 Towns Jewish Times, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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STEFAN JEREMIAH,

Plaintiff,

REPORT AND

-against- RECOMMENDATION

22 CV 5942 (NGG) (CLP)

5 TOWNS JEWISH TIMES, INC.,

Defendant.

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POLLAK, United States Magistrate Judge:

On October 4, 2022, plaintiff Stefan Jeremiah (“plaintiff” or “Jeremiah”) commenced this

action against defendant 5 Towns Jewish Times, Inc. (“defendant” or “5 Towns”), alleging

violations of the Copyright Act, 17 U.S.C. §§ 101, et seq., arising out of the unauthorized

reproduction and public display on defendant’s website of a copyrighted photograph owned and

registered by plaintiff Jeremiah (the “Photograph”). (Compl.1). Currently pending before this

Court is plaintiff’s Amended Motion for Default Judgment (the “Motion” or “Mot”) (ECF No.

25), which was referred to the undersigned for a Report and Recommendation. (Electronic

Order, dated January 10, 2024).

BACKGROUND

The relevant facts are set out in detail in the Court’s earlier Report and Recommendation,

filed August 9, 2023 (“R&R”) (ECF No. 19), and incorporated by reference herein. Thus, only

the salient facts relevant to the issue of damages will be repeated here.

Plaintiff is a professional photographer who licenses his photographs for a fee. (Compl.

¶¶ 2, 5). Defendant 5 Towns owns and operates a website at www.5tjt.com (the “Website”). (Id.

¶ 3). According to plaintiff, defendant posted on its Website an original photograph taken by

1 Citations to “Compl.” refer to the plaintiff’s Complaint, filed October 4, 2022. (ECF No. 1).

plaintiff depicting the arrest of Tiffany Harris on January 1, 2020. (Id. ¶ 18, Ex. 1). Plaintiff

claims that on April 11, 2022, he observed the Photograph on the Website in a story dated

January 28, 2020. (Id. ¶ 21, Ex. 2). Plaintiff asserts that defendant had not licensed or otherwise

obtained plaintiff’s permission to publish the Photograph. (Id. ¶¶ 24–25).

On October 4, 2022, plaintiff thereafter commenced this action seeking statutory

damages for willful copyright infringement, pursuant to 17 U.S.C. §§ 501, 504. (Compl. ¶ 46).

When defendant failed to answer or respond to the Complaint, a default was entered by the Clerk

of Court on December 5, 2022 (ECF No. 9), and thereafter, plaintiff moved for default judgment.

(ECF No. 11).

On August 9, 2023, this Court issued a Report and Recommendation, finding that

plaintiff had alleged the elements necessary to establish that defendant had infringed plaintiff’s

copyrighted photograph, and recommending that the motion for default judgment as to liability

be granted. (R&R at 15). However, with respect to plaintiff’s request for an award of statutory

damages, the Court found that plaintiff had failed to provide evidence of the actual date of

publication of the Photograph, information critical to a determination as to whether plaintiff was

entitled to an award of statutory damages and attorneys’ fees. (Id. at 14). Accordingly, the

Court recommended that the request for statutory damages and attorneys’ fees be denied without

prejudice to plaintiff providing evidence of the date of first publication. (Id. at 15).

On September 5, 2023, the district court adopted the Report and Recommendation in full.

(ECF No. 21). Although plaintiff notified the court by letter dated October 2, 2023, that the

parties had reached a settlement in principle, a subsequent letter filed by plaintiff on December 4,

2023, indicated that the settlement had fallen through due to defendant’s lack of response to

plaintiff’s efforts to memorialize a written settlement agreement. (ECF No. 24).

Thereafter, on December 4, 2023, plaintiff filed an Amended Motion for Default

Judgment. On January 10, 2024, that amended motion was then referred to the undersigned by

the district court. (Electronic Order, dated January 10, 2024).

On February 21, 2024, defendant attempted to file an Answer to the Complaint. (ECF

No. 29). The Court issued an Order on February 23, 2024, indicating that default judgment had

been previously entered as to liability and therefore the Answer was ineffective. (ECF No. 30).

The Court Order indicated that defendant could file a motion to vacate the prior default judgment

or oppose the plaintiff’s motion as to damages. (Id. at 3). Defendant thereafter filed an

affidavit/declaration in opposition to the Amended Motion, and plaintiff submitted a reply

thereto. (ECF Nos. 31, 34).

On March 28, 2024, the Court held an inquest hearing at which counsel for both plaintiff

and defendant appeared. (See Minute Entry, dated March 28, 2024; see also Hr’g Tr.2). During

that hearing, counsel for defendant clarified that defendant seeks to challenge the damages

awarded to plaintiff, but not the district court’s entry of default judgment as to liability. (Hr’g

Tr. at 2:19). During the inquest hearing, counsel for both the plaintiff and defendant presented

their arguments with respect to the amount of statutory damages to which plaintiff is entitled.

(Id. at 7:22–25, 8:24–25, 9:1–7).

DISCUSSION

As noted, the issue of liability has already been determined and since defendant has not

moved to vacate the earlier default judgment as to liability, the Court addresses here plaintiff’s

renewed request for statutory damages. Having considered the arguments of the parties, the

2 Citations to “Hr’g Tr.” refer to the Transcript of Civil Cause for Inquest Hearing held March 28, 2024,

which was filed on April 10, 2024. (ECF No. 35).

Court respectfully recommends that plaintiff be awarded statutory damages in the amount of

$5,000.

I. Legal Standards

“In general. . . an infringer of copyright is liable for . . .the copyright owner’s actual

damages and any additional profits of the infringer . . . .” 17 U.S.C. § 504. However, the

Copyright Act also allows plaintiffs to sue for “statutory damages” in lieu of actual damages and

profits once an act of infringement has been shown. Island Software Computer v. Microsoft, 413

F.3d 257, 262 (2d Cir. 2005). Statutory damages are available even when there is no evidence of

defendant’s profit or plaintiff’s losses sustained as a result of the infringement. See Starbucks

Corp. v. Morgan, No. 99 CV 1404, 2000 WL 949665, at *2 (S.D.N.Y. July 11, 2000), report and

recommendation adopted, No. 99 CV 1404 (S.D.N.Y. Aug. 8, 2002). The statute provides for an

award in an amount of “not less than $750 or more than $30,000 as the court considers just,” for

each work where the plaintiff can demonstrate that the copyright has been infringed. 17 U.S.C. §

504(c)(1). “Under the Copyright Act, there is no need for an infringer to act willfully for it to be

sanctioned.” Island Software Computer v. Microsoft, 413 F.3d at 265. However, when the

infringement is willful, enhanced statutory damages ranging to as much as $150,000 may be

awarded. 17 U.S.C. § 504(c)(2).

It is well established that plaintiff has the burden to prove damages and establish his

entitlement to recovery. See Greyhound Exhibit Group, Inc. v. E.L.U.L. Realty Corp., 973 F.2d

155, 158 (2d Cir. 1992), cert. denied, 506 U.S. 1080 (1993). When a plaintiff elects statutory

damages under the Copyright Act, “damages are calculated based on the number of copyrighted

works and . . .not on the number of incidents of infringement.” Fitzgerald v. CBS Broadcasting,

Inc., 491 F. Supp.2d 177, 182 (D. Mass. 2007) (citing Venegas-Hernandez v. Sonolux Records,

370 F.3d 183, 194 (1st Cir. 2004)). The Second Circuit has outlined a number of factors for

courts to consider in determining the appropriate measure of damages:

(1)The infringer’s state of mind; (2) the expenses saved, and

profits earned, by the infringer; (3) the revenue lost by the

copyright holder; (4) the deterrent effect on the infringer and third

parties; (5) the infringer’s cooperation in providing evidence

concerning the value of the infringing material; and (6) the conduct

and attitude of the parties.

Bryant v. Media Right Prods., 603 F.3d 135, 143–44 (2d Cir. 2020).

In addition, a plaintiff must prove willfulness before they are entitled to an enhanced

award of statutory damages. To prove willfulness under the Copyright Act, the plaintiff must

show that: 1) “defendant was actually aware of the infringing activity,” or 2) “defendant’s

actions were the result of ‘reckless disregard’ for, or ‘willful blindness’ to, the copyright holder’s

rights.” Island Software Computer v. Microsoft, 413 F.3d at 263; see also Yurman Design, Inc.

v. PAJ, Inc., 262 F.3d 101, 112 (2d Cir. 2001) (holding that willfulness “means that the

defendant recklessly disregarded the possibility that its conduct represented infringement”).

II. Analysis

Here, plaintiff seeks an award of $10,000 for the single incident of defendant’s display of

the Photograph, as contained in another entity’s news article; he does not seek enhanced

damages and thus, there is no need to demonstrate willfulness on the part of the defendant. (Mot.

at 1). As explained in this Court’s earlier Report and Recommendation, statutory damages and

attorney’s fees are not available if the infringement of a (1) “copyright on an unpublished work

commenced before the effective date of its registration” or (2) the “infringement . . . commenced

after first publication of the work and before the effective date of its registration. . . .” 17 U.S.C.

§ 412. Plaintiff alleged in the Complaint that the effective date of registration of the Photograph

was March 29, 2020. (Compl. ¶ 20). Since the alleged infringement occurred on January 28,

2020—prior to registration—the plaintiff needed to establish that the date of first publication was

prior to the infringement in order to fall within subsection (1) of Section 412. (R&R at 13–14).

Since the date of first publication was not alleged in the Complaint or established in plaintiff’s

original motion for default judgment, the Court was unable to determine if, as required, the

Photograph was published on or before the date of infringement. (Id.)

In support of plaintiff’s renewed motion for default judgment, plaintiff Jeremiah has

submitted a Declaration in which he states that he first published the Photograph by

commercially licensing it to the New York Post (“N.Y. Post”), which ultimately published it in

an article.3 (Jeremiah Decl.4 ¶ 4, Ex. B). He also confirms in his Declaration that he registered

the Photograph on March 29, 2020.5 (Id. ¶ 5). Thus, plaintiff has established that because the

first publication of the Photograph occurred on January 1, 2020, and the alleged infringement

occurred thereafter on January 28, 2020, he would be entitled to statutory damages and fees

under the Copyright Act. Plaintiff’s counsel confirmed as much during the inquest hearing

before this Court on March 28, 2024. (Hr’g Tr. at 3:1–16).

In opposition to plaintiff’s request for damages, defendant 5 Towns submitted an

affirmation from its president, Larry Gordon (“Mr. Gordon”), indicating that defendant owns a

traditional newspaper which is circulated for free in Brooklyn, Nassau, and Queens, and in

Miami. (Gordon Aff.6 ¶¶ 1, 3). Mr. Gordon explains that 5 Towns also has a website which

3 http://nypost.com/2020/01/01/hate-crime-suspect-tiffany-harris-arrested-for-third-time-in-three-days/

4 Citations to “Jeremiah Decl.” refer to the Declaration of Stefan Jeremiah, filed December 4, 2023. (ECF

No. 26).

5 In his Declaration, Jeremiah states that he registered the Photograph on March 29, 2023. (Jeremiah Decl.

¶ 5). However, given that Jeremiah states that he registered the Photograph “within three months of initial

publication,” the Court assumes that this reference to “2023” is an error, and Jeremiah intended to state that he

registered the Photograph on March 29, 2020. (Id.) Indeed, Jeremiah filed the applicable copyright registration

certificate, which states the date of registration as March 29, 2020. (Jeremiah Decl, Ex. C (ECF No. 26-3)).

6 Citations to “Gordon Aff.” refer to the affirmation of Larry Gordon in Opposition to Plaintiff’s Renewed

Motion for Default, filed February 26, 2024. (ECF No. 31).

refers to articles in the newspaper and allows other Jewish content organizations to post content

on the site. (Id. ¶ 3). The content of the website changes at least every week and there are no

access fees to view the site. (Id. ¶¶ 3, 4). Based on plaintiff’s allegation that he viewed the

Photograph on defendant’s website in April 2022, Mr. Gordon speculates that he must have seen

it on “some archiving storage site because it would not have remained on Defendant’s web pages

that long.” (Id. ¶ 6). He contends that the article posted on the website was from another news

outlet; “no-one on my staff wrote the article.” (Id. ¶ 7). Based on the date on the Photograph,

Mr. Gordon states that this is the date that the article appeared in an Israeli newspaper and not

the date that it appeared on defendant’s website, which he contends was January 30 or 31, 2020.

(Id. ¶ 9). He further represents that, based on the practice of the defendant, the article and picture

would not have appeared on the website until the end of the week. (Id. ¶ 10).7

Defendant also argues that it is “an innocent infringer.” (Id. ¶ 12). Citing 17 U.S.C. §

504(c)(2), defendant contends that the court is precluded from awarding statutory damages

“where such a person or institution infringed copyrighted material in the honest belief that what

they were doing constituted fair use.”8 (Id.) Defendant notes that the Photograph was of a street

arrest in New York City, that there was no notice that the Photograph was owned by anyone, that

there was never a request to take down the Photograph, and that defendant only learned about the

infringement in 2022 when suit was filed. (Id. ¶¶ 13–15). Indeed, defendant contends that the

Photograph was sent to defendant by a third-party Israeli news outlet that wrote the story. (Id. ¶

13). During the inquest hearing held before this Court, defendant’s counsel explained that

7 Defendant suggests that since the copyright notice was not filed until March 29, 2020, and by that time

the article was no longer on the website, it should not be held liable. (Gordon Aff. ¶ 11). Not only has liability

already been determined, but as discussed above, statutory damages can be awarded when the infringing conduct

occurs after the date of first publication even before registration.

8 Defendant conflates the mistake in fair use and innocent infringer provisions. The Court addresses this

distinction below, in the “Mistake and Innocent Infringer Provisions” section. (See p. 9 infra).

defendant “just puts up things that are given to him from usually Jerusalem, the Jewish

Telegraph Service,” and when defendant found that photo on the website, there was “no

indication that . . . there was a copyright on it.” (Hr’g Tr. at 3:21–23, 4:3–4). Finally, defendant

contends that it mitigated any damage by removing the Photograph within a week of its posting

on the website. (Gordon Aff. ¶ 19).

In response to defendant’s argument of “innocent” infringement, plaintiff contends that

not only has defendant failed to show that it believed it was engaging in fair use of the

Photograph at the time of its posting, but also that defendant’s fair use argument is “objectively

unreasonable on the merits.”9 (Pl.’s Reply10 at 1). Specifically, plaintiff argues that as a news

organization, defendant is “charged with knowledge of U.S. Copyright law.” (Id. at 2 (quoting

Fallaci v. New Gazette Literary Corp., 568 F. Supp. 1172 (2d Cir. 1983))). Plaintiff contends

that defendant’s act of infringement should be deemed willful or at least in reckless disregard of

plaintiff’s rights given that defendant should have known that a license was required to re-

publish the Photograph on the website and yet defendant made no effort to determine if such a

license was needed. (Id. at 3). During the inquest hearing, plaintiff’s counsel made the same

argument, claiming that defendant had the responsibility “to conduct due diligence” and “know

the source of the image.” (Hr’g Tr. at 6:16–17). Plaintiff urges the Court to consider

defendant’s recent history of being sued for infringement11 in assessing the appropriate award of

statutory damages. (Pl.’s Reply at 3.)

9 Like defendant, plaintiff also conflates innocent infringement and mistake in fair use. As noted above, the

Court discusses the distinction between the two below.

10 Citations to “Pl.’s Reply” refer to Plaintiff’s Reply to Defendant’s Opposition, filed March 18, 2024.

(ECF No. 34).

11 Mr. Gordon indicates in his affirmation that the instant lawsuit is the second one brought by plaintiff’s

counsel’s firm in a four-week time frame, “over a photo with no or little artistic value.” (Gordon Aff. ¶¶ 16, 17).

A. Mistake and Innocent Infringer Provisions

Plaintiff seeks an award of statutory damages in the amount of $10,000 for the display of

the Photograph on defendant’s website. (Mot. at 1). Defendant argues that “the Court is

precluded from awarding any statutory damages” because it believed that its actions “constituted

fair use,” pursuant to 17 U.S.C. § 504(c)(2). (Gordon Aff. ¶ 12). The “belief of fair use”

provision provides that:

The court shall remit statutory damages in any case where an

infringer believed and had reasonable grounds for believing that

his or her use of the copyrighted work was a fair use under section

107, if the infringer was: (i) an employee or agent of a nonprofit

educational institution, library, or archives acting within the scope

of his or her employment . . . or (ii) a public broadcasting entity . . .

as defined by section 118(f) . . . that infringed the work by

performing a published nondramatic literary work or by

reproducing a transmission program embodying a performance of

such a work.”

17 U.S.C. § 504(c)(2).

As a preliminary matter, defendant does not qualify under this provision because it is not

“an employee or agent of a nonprofit educational institution, library, or archives” or “a public

broadcasting entity” engaged in the relevant sort of publication. Moreover, and in any event,

defendant fails to meet its burden of proving that it “believed and had reasonable grounds for

believing” that the work “was a fair use” as required to take advantage of the exception to

statutory damages. Not only does defendant make no attempt to explain the reasoning behind

defendant’s supposed belief, but as plaintiff argues, defendant, as a news source, is required to

be aware of and adhere to copyright law. (Pl.’s Reply at 2). During the inquest hearing held

before this Court, defendant’s counsel explained that “[p]eople send in articles. [Defendant]

look[s] at that and they ask them, is there any problems with this, and they do their due diligence

with regard to the person who sends them the newspaper.” (Hr’g Tr. at 9:4–7). However, in the

instant case, defendant clearly did not conduct its due diligence. Indeed, plaintiff’s argument is

well taken. Not only should defendant, as a news organization, be alert to the potential copyright

issues surrounding the posting of items on its website, see Fallaci v. New Gazette Literary Corp.,

568 F. Supp. 1172; Van Der Zee v. Greenidge, No. 03 CV 8659, 2006 WL 44020 (S.D.N.Y. Jan.

6, 2006), but defendant’s failure to take steps to ensure that the copyright laws were being

followed constitutes reckless disregard of its responsibilities. Therefore, the Court finds that

defendant has not met its burden of demonstrating that its actions “constituted fair use” in the

context of 17 U.S.C. § 504(c)(2).12

As for defendant’s claim that it was an “innocent” infringer, both defendant and plaintiff

appear to conflate this argument with its belief of fair use defense. (Gordon Aff. ¶ 12; Pl.’s

Reply at 1). However, the Court notes that unlike the belief of fair use provision, which states

that “the court shall remit statutory damages,” the “innocent infringer” provision provides courts

with the discretion to reduce statutory damages “to a sum of not less than $200” in the event that

“the infringer sustains the burden of proving, and the court finds, that such infringer was not

aware and had no reason to believe that his or her acts constituted an infringement of copyright.”

17 U.S.C. § 504(c)(2).

In the Second Circuit, “[t]he burden is on the defendants to establish that any

infringement was innocent.” D.C. Comics Inc. v. Mini Gift Shop, 912 F. 2d 29, 35 (2d Cir.

1990). While this provision does not have the same requirement that defendants fit into one of

two narrow categories of infringer, as with the belief of fair use provision, the same finding with

12 The Court notes that defendant may have intended to raise fair use as a defense to liability. However, in

that case, as other courts in this Circuit have held, “[f]air use is an affirmative defense; therefore, a defendant

accused of copyright infringement bears the burden of showing that its use of a work was fair.” Fioranelli v. CBS

Broadcasting Inc., 551 F. Supp. 3d 199, 228 (S.D.N.Y. 2021) (citing Authors Guild v. Google, Inc., 804 F. 3d 202,

213 (2d Cir. 2015)). By failing to seek to vacate the default and only challenging the damages awarded to plaintiff,

as opposed to the district court’s entry of default judgment as to liability (see Hr’g Tr. at 2:19), defendant effectively

forfeited the fair use defense to liability.

respect to defendant’s status as a news source applies here. Indeed, defendant maintains the

responsibility of adhering to copyright laws, and therefore, it cannot claim that it “had no reason

to believe that [its] . . . acts constituted an infringement of copyright.” Moreover, defendant has

not presented any argument in support of the application of the innocent infringer defense to this

case. Accordingly, the Court finds that defendant has failed to raise a valid belief of fair use or

innocent infringement defense to statutory damages pursuant to 17 U.S.C. § 504(c)(2).

B. Calculation of Award

Given that defendant has failed to raise valid claims for mistake in fair use or innocent

infringer provisions, the Court determines that plaintiff is entitled to statutory damages. Since

liability for infringement has already been determined based on defendant’s default, and since

plaintiff need not prove willfulness unless he is seeking enhanced damages, which he is not, the

Court proceeds to consider the relevant factors in determining the appropriate award of statutory

damages: “(1) The infringer’s state of mind; (2) the expenses saved, and profits earned, by the

infringer; (3) the revenue lost by the copyright holder; (4) the deterrent effect on the infringer

and third parties; (5) the infringer’s cooperation in providing evidence concerning the value of

the infringing material; and (6) the conduct and attitude of the parties.” Bryant v. Media Right

Prods., 603 F.3d 135 at 143–44.

Under the Copyright Act, statutory damages serve two purposes: one is compensatory,

and the other is punitive to discourage future violations by defendant and others. Richard Feiner

& Co., Inc. v. Passport Int’l Prods., Inc., No. 97 CV 9144, 1998 WL 437157, *2 n.13 (S.D.N.Y.

July 31, 1998); CJ Prod. LLC v. Your Store Online LLC, No. 11 CV 9513, 2012 WL 2856068,

at *3 (S.D.N.Y. July 12, 2012). The trial court has wide discretion in settling the amount of a

statutory damages award. See Fitzgerald v. CBS Broadcasting, Inc., 491 F. Supp.2d at 190. A

review of the caselaw reflects a wide range of awards for the infringement of a photograph. See

Burch v. Nyarko, No. 06 CV 7022, 2007 WL 2191615, at *3 (S.D.N.Y. July 31, 2007).

With respect to the infringer’s “state of mind,” courts look to whether the defendant was

aware of its infringement yet acted anyway. See Castillo v. G&M Realty L.P., 950 F. 3d 155,

172 (2d Cir. 2020) (finding that the defendant “was ‘willing to run the risk of being held liable

for substantial statutory damages rather than to jeopardize his multimillion dollar luxury condo

project’”). As noted above, the Court agrees with plaintiff that as a newspaper, defendant had

the responsibility to conduct due diligence and maintain an awareness of applicable copyright

laws. See Fallaci v. New Gazette Literary Corp., 568 F. Supp. at 1173. Therefore, the Court

cannot conclude that defendant had any reasonable excuse to be unaware of its infringement.

Accordingly, the Court finds that the “state of mind” factor weighs in favor of the plaintiff.

With respect to the second and third relevant factors, plaintiff contends that because he is

seeking statutory damages, there is no requirement for him to make a showing of his loss or

defendant’s profit. (Pl.’s Mem.13 at 11). Some courts have taken the position advocated by

plaintiff. See Peer Int’l Corp. v. Max Music & Entm’t, Inc., No. 03 CV 0996, 2004 WL

1542253, at * 2 (S.D.N.Y. July 9, 2004); see also CJA Prods., LLC v. Your Stone Online LLC,

2012 WL 2856068, fn. 4 (holding that a copyright owner may elect statutory damages

“regardless of the adequacy of the evidence offered as to his actual damages and the mount of

defendant’s profits, and even if he has intentionally declined to offer such evidence, although it

was available”). Other courts have held that “it is obviously incumbent upon the plaintiff to

submit a record sufficient to support the amount of statutory damages that he is seeking.” Seelie

v. Original Media Group LLC, No. 19 CV 5643, 2020 WL 136659, at *2 (E.D.N.Y. Jan. 13,

13 Citations to “Pl.’s Mem.” refers to plaintiff’s Memorandum of Law filed February 13, 2013. (ECF No.

12).

2020); see also Lowery v. Fire Talk LLC, No. 19 CV 3737, 2020 WL 5441785, at *3 (E.D.N.Y.

June 29, 2020), report and recommendation adopted, 2020 WL 5425768 (E.D.N.Y. Sept. 10,

2020) (holding that plaintiff “still has the ability — and the responsibility — to present some

minimal amount of evidence in support of the damages request”).

In this case, plaintiff has not provided the Court with any information as to what his

actual licensing fee would have been, nor any suggestion as to what actual damages he may have

suffered as a result of defendant’s posting of the Photograph. Plaintiff has not pointed to any of

the primary factors for determining an appropriate award of statutory damages in his arguments

supporting his request. Indeed, the only information he has provided to assist the Court in

determining the appropriate award within the statutory limits of Section 702 is a listing of

various cases and the amounts awarded for the violations found therein. (See Pl.’s Mem. at 17–

18, n.5). As the court in Seelie v. The Original Media Group LLC, noted, cases “are not

evidence, they are legal authorities,” and, for every case cited awarding the amounts sought by

plaintiff, “there are more cases awarding different amounts. . . ,” 2020 WL 136659 at *2, see also

Jerstad v. New York Vintners LLC, No. 18 CV 10470, 2019 WL 6769431, at *4 (S.D.N.Y. Jan.

6, 2020) (denying requested award of $10,000, and awarding $2,500 where plaintiff did not

explain why the other cases cited were appropriate comparisons and where he had not made

much of an effort to support a damages figure).

Considering the cases cited by plaintiff here, some have awarded damages of $20,000

and $25,000 for the copying and posting of a single photograph, see, e.g., Sadowski v. Render

Media Inc., No. 17 CV 9045, 2020 WL 5968668 at *3 (S.D.N.Y. Oct. 8, 2020) (declining to

award the statutory maximum, instead awarding $25,000 where the defendant featured plaintiff’s

photograph of a crime scene on its website without license); Myeress v. Elite Travel Group USA,

No. 18 CV 0340, 2018 WL 5961424 at *3 (S.D.N.Y. Nov. 14, 2008) (awarding $20,000 for the

display of a photograph of South Florida on defendant’s travel website, noting that the statutory

maximum is often not awarded when there is no evidence of lost revenue), while others have

awarded less, including several that have awarded only $5,000 in similar circumstances. See,

e.g., Seelie v. The Original Media Group LLC, 2020 WL 136659 at *6; Bass v. Diversity Inc.

Media, No. 19 CV 2261, 2020 WL 2765093 at *5 (S.D.N.Y. May 26, 2020).

Having reviewed the cases cited by plaintiff, and in the absence of any clearly applicable

guidelines from the Second Circuit, the Court finds the analysis performed by the court in Seelie

instructive. In Seelie, the defendant copied the plaintiff’s photograph from a licensed

publication, removed the credit for the photograph in which the licensee had shown plaintiff’s

name, and published the photograph on its website without permission. Seelie v. The Original

Media Group LLC, 2020 WL 136659 at *1. In analyzing the relevant factors, the court

explained that plaintiff’s “respectful refusal” to disclose his usual licensing fee “leads me to draw

the inference that it is de minimis,” noting that other courts had considered a multiplier of a

licensing fee in determining a statutory award. Id. at *4. The court further noted that plaintiff

had made no effort to determine the nature of the defendant’s business and its wherewithal to pay

a substantial damage award. Id. Although, as here, the plaintiff in Seelie argued that defendant’s

default was relevant to the issue of willfulness, more important to the court’s analysis, was the

removal of the accreditation of the photograph and the fact that, as a publisher, defendant should

be familiar with the copyright laws. Id. In awarding $5,000, the court in Seelie explained that

the most important factor in his analysis as to damages was the plaintiff’s withholding of his

actual licensing fee, leading the judge to conclude that an award of $5,000 was likely a

substantial multiple of the licensing fee and thus would satisfy the dual purposes of statutory

damages. Id.

As in Seelie, plaintiff here has chosen not to provide any information regarding the

revenue lost as a result of the infringement, nor has he provided the licensing fee charged to the

N.Y. Post or to anyone else in connection with the specific Photograph, or of other licensing fees

charged for his works. By contrast to the facts in Seelie, there is evidence before the Court

indicating that since defendant did not charge for materials posted on its website, there does not

appear to be any revenue or profits received by defendant in connection with the use of the

Photograph. See Myeress v. Elite Travel Group USA, 2018 WL 5961424 at *3 (refusing to

award the statutory maximum because of its inability to determine “anything regarding

Defendant’s profits as a result of the use of his Photograph”).

In terms of deterrence, plaintiff has provided few facts to suggest that a high value award

is necessary for deterrence in this case. While defendant is in the publishing industry, and “in a

position to repeat the unauthorized reproduction of copyrighted material,” Bass v. Diversity Inc.

Media, 2020 WL 2765093 at *4 (internal quotations omitted), plaintiff’s only evidence to

suggest that defendant continues to infringe copyrights is another suit brought by plaintiff’s

counsel close in time to the instant case. (Pl.’s Reply at 3). At this time, without any further

information regarding the outcome of that litigation, the Court finds that it does not weigh

heavily in favor of a large award.

Plaintiff also argues that in determining the proper award, the Court should consider the

defendant’s willfulness as evidenced by its default in this case. (See id. at 13 (citing Entral

Group Int’l LLC v. Honey Café on 5th, Inc., No. 05 CV 2290, 2006 WL 3694584, at *6

(E.D.N.Y. Dec. 14, 2006). Even though plaintiff need not prove willfulness because he does not

seek enhanced damages, courts do take willfulness into consideration when determining the

amount of the award. See Twin Peaks Productions, Inc. v. Publications Intern., Ltd., 996 F. 2d

1366, 1381–1382 (2d Cir. 1993) (finding that although “the District Court’s award of $15,000

for each work infringed is sustainable with or without a finding of willfulness, we feel obliged to

review the challenge to willfulness finding because it may well have influenced … the amount of

the award”).

Although defendant in this case did default originally, it later engaged in efforts to settle

the case and then appeared and provided evidence in connection with the calculation of damages.

See Reilly v. Commerce, No. 15 CV 5118, 2016 WL 6837895, at *9 (S.D.N.Y. Oct. 31, 2016)

(holding that “not all willful conduct constitutes the kind of truly egregious conduct that justifies

maximum damages”). Moreover, the circumstances here suggest that the actual infringer was

the Israeli newspaper that printed the Photograph in the first instance and posted it on

defendant’s website. (Gordon Aff. ¶ 9). While that does not relieve defendant from its

obligation to review the content of its website for potentially infringing material, defendant in

this case did not affirmatively take action to copy the Photograph nor did defendant, as in Seelie,

remove identifying information from the Photograph.

Defendant also cites as a factor the fact that, according to the defendant’s practice, the

article containing the Photograph was posted for less than a week and then removed as part of a

normal practice of rotation. (Id. ¶ 19). Moreover, since plaintiff only discovered the

infringement two years later, there was no need for plaintiff to send notices of infringement to

defendant in an effort to remove the Photograph which had already been taken off the website.

During the inquest hearing, plaintiff’s counsel argued that “the idea that [the photograph] was

only up for a week, I think we all know that that’s not relevant… .” (Hr’g Tr. at 6:23–25).

However, while the length of the posting does not factor into the determination of the award

here, the Court disagrees with plaintiff’s assertion of irrelevance, as other courts have found that

the amount of damages depends on whether the “defendant continued its infringing conduct

despite receiving notices to end such activity.” Sadowski v. Render Media Inc., 2020 WL

5968668 at *3.

Having considered all of the relevant factors, including the fact that there is no evidence

defendant profited from the infringing conduct, no evidence that, as in Seelie, the defendant took

steps to hide the identification of the photographer, and the absence of any evidence of plaintiff’s

licensing fee, the Court respectfully recommends that plaintiff be awarded $5,000 in statutory

damages.

III. Attorneys’ Fees and Costs

Plaintiff also seeks $1,080 in attorneys’ fees and $440 in costs, pursuant to 17 U.S.C. §

505. (Mot. at 1). Under the Copyright Act, a “prevailing party . . . may recover full costs,

including reasonable attorney’s fees.” 17 U.S.C. § 505. “Courts have found that compensation,

including attorney’s fees and costs, are appropriate where a defendant has defaulted.” Sadowski

v. Render Media Inc., 2020 WL 5968668 at *4, (quoting McCurry v. Accesory Network Grp.,

LLC, No. 15 CV 9779, 2016 WL 11620045, at *6 (S.D.N.Y. Oct. 5, 2016), report and

recommendation adopted, 2019 WL 4142491 (S.D.N.Y. Aug. 30, 2019)). In determining an

award of fees, courts consider “(1) the frivolousness of the non-prevailing party’s claims or

defenses; (2) the party’s motivation; (3) whether the claims or defenses were objectively

unreasonable; and (4) compensation and deterrence.” Bryant v. Media Right Prods., Inc., 603

F.3d 135, 144 (2d Cir. 2010).

In support of his application for attorney’s fees, plaintiff has submitted the Declaration of

James H. Freeman, a senior associate at Sanders Law Group, who graduated from the Benjamin

N. Cardozo School of Law in 2000. (Freeman Aff. (ECF No. 13) ¶¶ 13, 14). Counsel represents

that his current hourly rate is $600 per hour, which he asserts is reasonable for a “New York

attorney” with over 20 years of experience in intellectual property law. (Id. ¶ 16 (citing a

number of cases approving rates between $400 to $657 an hour for “partners” with significant

experience in copyright law)).

The Court finds that this rate to be high compared to the rates awarded counsel in similar

cases in the Eastern District of New York. See Seelie v. The Original Media Group LLC, 2020

WL 136659 at *6 (finding $425 per hour to be an appropriate rate for a partner in a copyright

infringement case). Given the relative simplicity of the issues and the amount of work presented

by this default, which involved researching and reviewing an eight-page complaint, drafting the

application for entry of default and drafting the application for default judgment, the Court finds

that such a high hourly rate is not justified here, particularly since the first motion for default

judgment failed to provide the date of publication—an element critical to a determination of

entitlement to statutory damages. (R&R at 14–15). Accordingly, the Court respectfully

recommends that counsel be awarded fees at the rate of $425 per hour.

As for the number of hours expended in connection with this case, counsel’s Declaration

seeks fees for the 1.8 hours spent up until the first motion for default judgment. (Freeman Aff.. ¶

17, at 3–4). Counsel has not submitted a supplemental declaration seeking any additional fees

expended in connection with the revised motion for default. Accordingly, the Court finds the

total number of hours requested to be reasonable. It is therefore respectfully recommended that

plaintiff be awarded $765 in attorney’s fees.

Finally, the Court has discretion to “order a copyright litigant to pay an adversary’s court

costs.” Johnson v. Magnolia Pictures LLC, No 18 CV 9337, 2019 WL 4412483, at *4 (S.D.N.Y.

Sept. 16, 2019). Plaintiff seeks an award of $440 in costs, representing $400 in filing fee, and

$40 in service fees. Based on the documentation submitted, the Court respectfully recommends

that plaintiff be awarded $440 in costs.

CONCLUSION

For the reasons set forth above, it is respectfully recommended that plaintiff be awarded

$5,000 in statutory damages, $765 in attorney’s fees, and $440 in costs.

Any objections to this Report and Recommendation must be filed with the Clerk of the

Court, with a copy to the undersigned, within fourteen (14) days of receipt of this Report.

28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(a) (providing the

method for computing time). Failure to file objections within the specified time waives the right

to appeal the District Court’s order. See, e.g., Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d

Cir. 2008).

The Clerk is directed to send copies of this Report and Recommendation to the parties

either electronically through the Electronic Case Filing (ECF) system or by mail.

SO ORDERED.

Dated: Brooklyn, New York

August 23, 2024

/ s/ Cheryl L. Pollak

Cheryl L. Pollak

United States Magistrate Judge

Eastern District of New York