Harbus v. Vosa TV Inc

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

RICHARD HARBUS, MEMORANDUM & ORDER

Plaintiff, 24-CV-3572 (NGG) (JAM)

-against-

VOSA TV ING,

Ci effets

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff Richard Harbus brought this action against Defendant

Vosa TV Inc, seeking damages and injunctive relief under the

Copyright Act, 17. U.S.C. § 101 et seq., for Defendant’s unauthor-

ized use of Plaintiffs photograph. After Defendant failed to

appear, Plaintiff moved for default judgment against Defendant.

(See Mot. for Default J. (“Mot.”) (Dkt. 14).) Pending before this

court are Magistrate Judge Joseph A. Marutollo’s Report and

Recommendation (“R&R”) on Plaintiffs motion for default judg-

ment and Plaintiffs objections to the R&R. (See R&R (Dkt. 18);

Pl.’s Objs. (Dkt. 20).)

For the reasons set forth below, the Court ADOPTS the R&R in

part and MODIFIES it in part. Plaintiffs motion for default judg-

ment is GRANTED in part and DENIED in part.

I. BACKGROUND

The court assumes the parties’ familiarity with the factual back-

ground and procedural history in this matter and thus will

summarize only those facts relevant to the instant motion.

Plaintiff, a professional photographer, alleges that Defendant, a

media company, copied and/or displayed a copyrighted photo-

graph (the “Photograph”) owned by Plaintiff on Defendant’s

website without Plaintiffs permission, in violation of the Copy-

right Act, 17 U.S.C. § 101 et seq. (See Compl. (Dkt. 1) 4 1-4.) On

July 15, 2024, after Defendant failed to “file[] an answer or oth-

erwise move[] with respect to the complaint the Clerk of Court

entered a default against Defendant. (Certificate of Default (Dkt.

10).) Plaintiff then filed the instant unopposed motion for default

judgment against Defendant. (Mot.) In his motion, Plaintiff “re-

quests that the Court award $7,500.00 in statutory damages for

direct copyright infringement, $2,370.00 in attorneys’ fees and

$460.00 in costs for a total judgment of $10,330.00.” (id. at 18.)

Plaintiff also asks this court to “issue an injunction permanently

enjoining Defendant from displaying the Photograph on its Web-

site or in any alternative medium under the Defendant’s control.”

Ud. at 17.)

On October 17, 2024, the court referred the motion to Judge

Marutollo for an R&R pursuant to 28 U.S.C. § 636(b)(1)(B) and

Federal Rule of Civil Procedure 72(b)(1). (Oct. 17, 2024 Order

Referring Mot.) Judge Marutollo issued the annexed R&R on

March 14, 2025, recommending that Plaintiffs motion be

granted in part and denied in part. (R&R at 28.) Judge Marutollo

recommended that the court grant Plaintiffs motion for default

judgment against Defendant but award Plaintiff attorneys’ fees at

an amount below what Plaintiff requested. (See id. at 27 (recom-

mending that the court award Plaintiff $1,632.50 in attorneys’

fees).) Specifically, Judge Marutollo concluded that the respec-

tive reasonable hourly rate for senior partner Craig Sanders is

$450.00, associate Joshua Vera is $200.00, and paralegals is

$75.00. Ud.) Plaintiff timely objected to Judge Marutollo’s R&R.

(See Pl.’s Objs.) PlaintifPs sole objection to the R&R concerns the

hourly rates recommended by Judge Marutollo. (See Pl.’s Objs. at

1-2 (“Upon the Court’s de novo review, Plaintiff respectfully re-

quests an increase to the hourly rates for legal services provided,

above and beyond that recommended by the R&R, so as to make

the requested award commensurate with current market condi-:

tions and adjusting for inflation.”).) .

II. LEGAL STANDARD

Rule 55 provides a two-step process for obtaining default judg-

ment. See Fed. R. Civ. P. 55. In step one, the Clerk of Court enters

a party’s default upon a party’s showing, based on an affidavit or

other evidence, that the “party against whom a judgment for af-

firmative relief is sought has failed to plead or otherwise defend.” □

Fed. R. Civ. P. 55(a). In step two, only if the plaintiffs claim is

for a “sum certain or sum that can be made certain by computa-

tion” can the Clerk of Court enter default judgment. Esquivel v.

Lima Rest. Corp., No. 20-CV-2914 (ENV) (MMH), 2023 WL

6338666, at *3 (E.D.N.Y. Sept. 29, 2023). Otherwise, the plain-

tiff must move the court to enter default judgment. Id. When

adjudicating a plaintiffs motion for default judgment, the court

accepts the plaintiffs well-pleaded factual allegations as true, ex-

cept those relating to damages. See Greyhound Exhibitgroup, Inc.

v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Gir. 1992). The

plaintiff bears the burden of alleging “specific facts” that entitle

him to default judgment. Cardoza v. Mango King Farmers Mkt.

Corp., No. 14-CV-3314 (SJ) (RER), 2015 WL 5561033, at *3

(E.D.N.Y. Sept. 1, 2015). The ultimate decision on the motion for

default judgment is “left to the sound discretion of [the] district

court.” Esquivel, 2023 WL 6338666, at *3.

The Copyright Act permits prevailing parties to recover costs and

attorneys’ fees. 17 U.S.C. § 505 (“[T]he court in its discretion

may allow the recovery of full costs by or against any party. . .

the court may also award a reasonable attorney’s fee to prevail-

ing party as part of the costs.”); Galeana v. Lemongrass on

Broadway Corp., 120 F. Supp. 3d 306, 323 (S.D.N.Y. 2014) (“Dis-

trict courts have broad discretion in determining reasonable

attorneys’ fees.”). “The starting point for determining the pre-

sumptively reasonable fee award is the lodestar amount, which

is the product of a reasonable hourly rate and the reasonable

number of hours required by the case.” Hennessy v. 194 Bedford

Ave Rest. Corp., No. 21-CV-5434 (FB) (RML), 2022 WL 4134502,

at *6 (E.D.N.Y. Aug. 8, 2022), report and recommendation

adopted, 2022 WL 4134437 (E.D.N.Y. Sept. 12, 2022). “Deter-

mining the reasonable hourly rate begins by applying the ‘forum

rule,’ which requires courts to ‘generally use the hourly rates em-

ployed in the district in which the reviewing court sits’ in

calculating the presumptively reasonable fee.” Rubin v. HSBC

Bank USA, NA, No. 20-CV-4566, 2025 WL 248253, at *2-3

(E.D.N.Y. Jan. 21, 2025) (quoting Arbor Hill Concerned Citizens

Neighborhood Ass’n v. Cnty. of Albany & Albany Cnty. Bd. of Elec-

tions, 522 F.3d 182, 192 (2d Cir. 2008))(reasoning that

“Ta]djustments and increases to those rates have tended to come

in an ad hoc fashion based on indeterminate factors, including

inflation”).

However, the court reviews de novo those aspects of the R&R to

which the party has objected. 28 U.S.C. § 636(b) (1); Fed. R. Civ.

P. 72(b)(3); see also Fischer v. Forrest, 286 F. Supp. 3d 590, 601

(S.D.N.Y. 2018) (“When a timely and specific objection has been

made, the court is obligated to review the contested issues de

novo.”). Upon de novo review, the court “may accept, reject, or

modify, in whole or in part,” the magistrate judge’s findings. 28

U.S.C. § 636(b) (1). “Portions of the R & R to which a party makes

no objection are [] reviewed for clear error.” Velasquez v. Metro

Fuel Oil Corp., 12 F. Supp. 3d 387, 397 (E.D.N.Y. 2014). Simi-

larly, “when a party makes only conclusory or general objections,

or simply reiterates his original arguments, the court reviews the

report and recommendation strictly for clear error.” Piligian v.

Icahn Sch. of Med. at Mount Sinai, 490 F. Supp. 3d 707, 715

(S.D.N.Y. 2020).

Ill. DISCUSSION

Judge Marutollo concluded that “Plaintiff has established that

the Photograph is an original work, and that Defendant copied

the Photograph in violation of the Copyright Act” and recom-

mended that the court enter default judgment “in favor of

Plaintiff and against Defendant with respect to liability.” (R&R at

17.) The R&R recommended that the court grant “Plaintiffs re-

quest for a permanent injunction prohibiting Defendant from

further infringement of the Photograph.” (Id. at 19 (“The under-

signed further respectfully recommends that Defendant be

ordered to delete and permanently remove the Photograph, and

cease display of the Photograph on its website.”).) With regard

to damages, the R&R “recommend [ed] that Plaintiff be awarded

statutory damages in the total amount of $3,950.00, represent-

ing a multiplier of five times the $790.00 licensing fee Plaintiff

offers as a comparable rate.” (Id. at 22.) Having found no clear

error in Judge Marutollo’s determinations concerning liability,

injunctive relief, and damages, the court adopts his recommen-

dations. See Velasquez, 12 F. Supp. 3d at 397 (reviewing

“[pjortions of the R & R to which a party makes no objection...

for clear error”).

Next, Judge Marutollo also concluded that an award of attorneys’

fees is appropriate. (See R&R at 25.) Plaintiff now objects to the

R&R’s determination of attorneys’ fees. (See generally Pl.’s Objs.)

In the attorney declaration attached to Plaintiffs motion, attor-

ney Joshua D. Vera submits that his hourly rate as an associate

on this matter is $250.00 per hour, and the hourly rate for the

senior partner on this matter, Craig B. Sanders, is $750.00. (Vera

Decl. (Dkt. 13) 14 14-15 (discussing Vera’s education and quali-

fications), 16-17 (discussing Sanders’s education and

qualifications).) Plaintiff asserts that one of the paralegals billed

at $125.00 per hour, and the other three paralegals billed at

$150.00 per hour. (Id. 18-21.) Plaintiff seeks $2,370.00 in at-

torneys’ fees to compensate Plaintiffs counsel for the combined

8.6 hours of work completed by the attorneys and paralegals as-

signed to this matter. (See id. { 24.) Departing downward from

Plaintiffs request, Judge Marutollo determined that the respec-

tive reasonable hourly rate for senior partner Sanders is $450.00,

associate Vera is $200.00, and the paralegals is $75.00 (R&R at

27.) Thus, Judge Marutollo recommended awarding Plaintiff

$1,632.50 in attorneys’ fees. (Id.) Plaintiff objects to the R&R and

argues that Judge Marutollo failed to take due consideration of

inflation and market conditions. (Pl.’s Objs. at 2 (quoting Rubin,

2025 WL 248253, at *5 (“[A]ttorney’s fees, like other goods and

services, increase in cost with inflation.”)).)

The court finds Judge Frederic Block’s extensive discussion of the

Eastern District of New York’s approach to determining attorneys’

fees persuasive. See Rubin, 2025 WL 248253, at *5-6 (discussing

the forum rule’s historical application and noting that the hourly

rates in the Eastern District of New York have been stagnant since

2012) (citing Pall Corp. v. 3M Purification Inc., Nos. 97-CV-7599

(RRM) (ETB) & 3-CV-92 (RRM) (ETB), 2012 WL 1979297, at *4

(E.D.N.Y. June 1, 2012) (“Recent opinions issued by courts

within the Eastern District of New York have found reasonable

hourly rates to be approximately $300-$450 for partners, $200-

$325 for senior associates, and $100-$200 for junior associ-

ates.”)). Inflation, or “the general increase in prices of goods and

services, which results in a decrease in the purchasing value of

money,” applies to legal services. See id. at *6. This includes the

services rendered by Plaintiffs counsel in this matter. Accord-

ingly, the court respectfully rejects Judge Marutollo’s significant

downward departure below the hourly rates sought by Plaintiff.

The court finds that the reasonable hourly rate for senior partner

Craig Sanders is $650.00, for associate Joshua Vera is $250.00,

and for all paralegals that assisted on this matter is $125.00. See

id, at *6 (“Adjusted for inflation and market conditions, I have

rounded out the forum rates in the Eastern District to now be

$450-$650 for partners, $300-$450 for senior associates, $150-

$300 for junior associates, and $100-$150 for paralegals.”). Ac-

cordingly, the court modifies Judge Marutollo’s recommendation

to award Plaintiff $1,632.50 in attorneys’ fees, instead awarding

Plaintiff $2,227.50 in attorneys’ fees.! The court adopts Judge

Marutollo’s recommendation that Plaintiff be awarded costs of

$460.00. (See R&R at 23.)

IV. CONCLUSION

The Court ADOPTS the R&R in part and MODIFIES it in part. The

court GRANTS Harbus’s motion for default judgment in part and

DENIES it in part. The court respectfully DIRECTS the Clerk of

Court to enter default judgment against Vosa TV Inc. The court

also permanently ENJOINS Vosa TV Inc from continuing to store

or display Harbus’s Photograph on Vosa TV Inc’s website or in

any alternative medium under Vosa TV Inc’s control. The court

further awards Harbus statutory damages of $3,950.00, attor-

neys’ fees of $2,227.50, costs of $460.00, and post-judgment

interest from the date of entry of judgment until Vosa TV Inc has

satisfied the judgment.

SO ORDERED.

Dated: Brooklyn, New York

April a\_, 2025

NICHOLAS G. GARAUFIS

United States District Judge

1 The court arrives at the attorneys’ fee award by summing the following:

(i) $715.00 billed by Sanders at an hourly rate of $650 for 1.1 hours; (ii)

$1,150.00 billed by Vera at an hourly rate of $250 for 4.6 hours; and (iii)

$362.50 billed by paralegals at an hourly rate of $125 for 2.9 hours. (See

Vera Decl. 24 (detailing time expended by Sanders, Vera, and paralegals

on this matter); see also R&R at 27 (same).)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-------------------------------------------------------------------X

RICHARD HARBUS,

Plaintiff, REPORT AND

RECOMMENDATION

v.

24-CV-3572

VOSA TV Inc, (Garaufis, J.)

(Marutollo, M.J.)

Defendant.

-------------------------------------------------------------------X

JOSEPH A. MARUTOLLO, United States Magistrate Judge:

Plaintiff Richard Harbus brings this action against Defendant Vosa TV Inc, seeking

damages and injunctive relief under the Copyright Act, 17. U.S.C. § 101 et seq., for Defendant’s

alleged unauthorized use of Plaintiff’s photograph (the “Photograph”). See generally Dkt. No. 1.

Currently pending before this Court, on a referral from the Honorable Nicholas G.

Garaufis, United States District Judge, is Plaintiff’s motion for default judgment against Defendant

(the “Motion”). See Dkt. No. 11; October 17, 2024 Dkt. Order. For the reasons set forth below,

the undersigned respectfully recommends that Plaintiff’s Motion be granted in part and denied in

part.1

I. Background

A. Factual Allegations

The following facts are taken from the Complaint, Plaintiff’s Motion, and the attachments

filed in support of the Motion. The facts are assumed to be true for the purposes of this motion.

See Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (in light of defendant’s default, a court

1 Marcus D’Agostino, a judicial intern who is a second-year law student at Fordham University School of

Law, is gratefully acknowledged for his assistance in the research and drafting of this Report and

Recommendation.

is required to accept all of plaintiff's factual allegations as true and draw all reasonable inferences

in plaintiff's favor); see also Insured Advocacy Group LLC v. Tarp Solutions, No. 24-CV-1560

(PAE) (RFT), 2025 WL 689001, at *1 (S.D.N.Y. Mar. 4, 2025).

Plaintiff is a professional photographer who copyrights his photos. Dkt. No. 1 10, 12,

13; see also Dkt. No. 12-1.

Plaintiff alleges that he created the Photograph, which depicts a retired detective named

Nicholas Calabrese surrounded by former colleagues for his birthday celebration. Dkt. No. 1 § 2.

Plaintiff attaches the Photograph to the Complaint, which is copied here as well:

Ley

“a =e a cts eld if aa eee Jail a

a = — ar) i PY} □□

—— 7 = ath = ae

So 4 —— i i ad ao □□ 0 :

oe ae

Las rg Me si ey

Ag ‘wie, bs 2 = oe ey Kaa a □

is fami ay □ ae

CJ A a= P| ae Ree

1 PR rim 5 aie

my )\ ae

Poe ee CE | RT NS

oe Oe

pee a A A mS

; Pe & == ss22 == 3: □□□

$222 Fi Fat Se cre 5 ee Se sigteee te Sue Oe eee nS tae □□□

Dkt. No. 1-1.

Plaintiff alleges that he “owns the rights and licenses [of the Photograph] for various uses[, ]

including online and print publications.” Dkt. No. 1 42. Plaintiff adds that he owns the copyrights

to the Photograph and that the copyright was registered with the United States Copyright Office.

Id. 2, 16. Plaintiffhas provided the relevant copyright information for the Photograph, including

the date of publication, the date of registration, and the copyright registration number. See Dkt.

No. 12-2. Plaintiff alleges that he first published the Photograph on February 21, 2020. See Dkt.

No. 19 14.

Defendant Vosa TV Inc is a media company that owns a website at domain www.vosa.tv,

with paid advertisements from which Defendant profits. /d. 9 3, 18-21. Plaintiff alleges that

Defendant copied and/or displayed the Photograph on its website on or about February 22, 2020

“as part of an on-line story at URL: https://www.vosa.tv/archives/13188.” Jd. § 22. Plaintiff

attaches a copy of the “screengrab of [Defendant’s] website,” which is copied below. /d.

ee oe ce ee sald a ne =e = =

NY: Masjid-o-Hamiza of Long Island along with

ae oi nates Food Pantry

The NYPO's oldest living retired detective. worked during most crime provoked years of New York City’s 05 he tuaned 10: ome mo = had 1 |

Corn to ey oon Soe stern meme, ee oe ole. On af

ee st eee “heh | ies

on 5 . ci See Cee

Peer 23 ati Pf La od For Displaying Excellence in Performance

[ aa A i Da sry

we be aut ie

eee re OO

□□□□□□□□□□□□□□□□□□□□□□□□ oA

SOLIS TRIE MACLEAN UUCMDENOS: eae Va

Pakistani Comedy King Umor Shareof Lands In

: EO

Dkt. No. 1-2.

Plaintiff did not give Defendant permission or authorization to copy or display the

Photograph. Dkt. No. 1 ¶ 24, 26. “Plaintiff first observed and actually discovered the Infringement

on April 11, 2022.” Id. ¶ 25. Plaintiff alleges that Defendant has received financial gains

attributable to the Infringement. Id. ¶ 35. “As a result of Defendant’s misconduct, Plaintiff has

been substantially harmed.” Id. ¶ 47.

B. Procedural History

Plaintiff filed the Complaint on May 16, 2024. See generally, id. Plaintiff served the

Defendant by serving the Secretary of State of the State of New York on May 24, 2024. See Dkt.

No. 6. Defendant did not file answer or otherwise respond to the complaint. Plaintiff requested a

certificate of default as against Defendant, pursuant to Federal Rule of Civil Procedure 55(a), on

July 11, 2024. Dkt. No. 8. The Clerk of Court entered the certificate of default against Defendant

on July 15, 2024. Dkt. No. 10.

On October 15, 2024, Plaintiff filed the Motion. Dkt. No. 25. Plaintiff’s Motion includes:

(1) a notice of motion (Dkt. No. 11); (2) a memorandum of law (Dkt. No. 14); (3) two affirmations

from Plaintiff and Plaintiff’s counsel (Dkt. Nos. 12, 13); (4) a copy of the certificate of default

(Dkt. No. 13-4); and (5) a proposed form of default judgment (Dkt. No. 11-1). Plaintiff also

submitted an affidavit of service indicating that Plaintiff mailed a copy of the Motion to Defendant

at its last known address. See Dkt. No. 16.

On October 17, 2024, Judge Garaufis entered an order referring Plaintiff’s Motion to the

undersigned for a report and recommendation. See October 17, 2024 Dkt. Order.

On October 28, 2024, the Court entered an order stating that “Plaintiff notes that Defendant

has a place of business located at 1090 Coney Island Avenue, Brooklyn, New York. Plaintiff is

ordered to serve, by November 1, 2024, a copy of the summons, the complaint, and Plaintiff's

motion for default judgment (Dkt. No. 10) on Defendant at the 1090 Coney Island Avenue,

Brooklyn, New York address. Additionally, Plaintiff shall serve a copy of the aforementioned

documents on V Telecommunications Inc., 1090 Coney Island Avenue, Ste. 8, Brooklyn, NY

11230.” October 28, 2024 Dkt. Order.

Plaintiff filed an affirmation of service at the aforementioned addresses on October 29,

2024. See Dkt. No. 17. Defendant has not filed a response to date.

II. Standard for Default Judgment

“Rule 55 of the Federal Rules of Civil Procedure provides a two-step process for obtaining

a default judgment.” Priestley v. Headminder, Inc., 647 F.3d 497, 504 (2d Cir. 2011). At the first

step, the Clerk of Court enters a party’s default after an affidavit or other evidence shows that the

“party against whom a judgment for affirmative relief is sought has failed to plead or otherwise

defend.” Fed. R. Civ. P. 55(a); Esquivel v. Lima Rest. Corp., No. 20-CV-2914 (ENV) (MMH),

2023 WL 6338666, at *3 (E.D.N.Y. Sept. 29, 2023) (“when a party uses an affidavit or other proof

to show that a party has ‘failed to plead or otherwise defend’ against an action, the clerk shall enter

a default.” (citing Fed. R. Civ. P. 55(a)). “If a claim is for ‘a sum certain or a sum that can be

made certain by computation,’ the clerk can enter judgment.” Id. (citing Fed. R. Civ. P. 55(b)(1)).

At the second step, and “[i]n all other cases, the party must apply to the court for a default

judgment.” Id. (citing Fed. R. Civ. P. 55(b)(2)). To “enter or effectuate judgment” the Court is

empowered to: “(A) conduct an accounting; (B) determine the amount of damages; (C) establish

the truth of any allegation by evidence; or (D) investigate any other matter.” Fed. R. Civ. P.

55(b)(2).

The Second Circuit “generally disfavor[s]” default judgment and has repeatedly expressed

a “preference for resolving disputes on the merits.” Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96

(2d Cir. 1993). Nevertheless, in evaluating a motion for default judgment, a court accepts as true

the plaintiff’s well-pleaded factual allegations, except those relating to damages. Greyhound

Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992); see also Flaks v.

Koegel, 504 F.2d 702, 707 (2d Cir. 1974). A plaintiff bears the burden of alleging “specific facts,”

rather than “mere labels and conclusions” or a “formulaic recitation of the elements,” so that a

court may infer a defendant’s liability. Cardoza v. Mango King Farmers Mkt. Corp., No. 14-CV-

3314 (SJ)(RER), 2015 WL 5561033, at *3 (E.D.N.Y. Sept. 1, 2015) (citing Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009)), report and recommendation adopted, 2015 WL 5561180 (E.D.N.Y. Sept.

21, 2015)).

The decision to grant or deny a motion for default judgment is “left to the sound discretion

of a district court.” Esquivel, 2023 WL 6338666, at *3 (quoting Shah v. New York State Dep’t of

Civ. Serv., 168 F.3d 610, 615 (2d Cir. 1999)). A court “possesses significant discretion” in

granting a motion for default judgment, “including [determining] whether the grounds for default

are clearly established.” Chen v. Oceanica Chinese Rest., Inc., No. 13-CV-4623 (NGG) (PK),

2023 WL 2583856, at *7 (E.D.N.Y. Mar. 21, 2023) (quotations and citation omitted). The Court

may also “consider numerous factors, including whether a plaintiff has been substantially

prejudiced by the delay involved and whether the grounds for default are clearly established or in

doubt.” Franco v. Ideal Mortg. Bankers, Ltd., No. 07-CV-3956 (JS) (AKT), 2010 WL 3780972,

at *2 (E.D.N.Y. Aug. 23, 2010) (cleaned up), report and recommendation adopted, 2010 WL

3780984 (E.D.N.Y. Sept. 17, 2010). As the Second Circuit has observed, the Court is guided by

the same factors which apply to a motion to set aside entry of a default, which include “whether

the defendant’s default was willful; (2) whether defendant has a meritorious defense to plaintiff’s

claims; and (3) the level of prejudice the non-defaulting party would suffer as a result of the denial

of the motion for default judgment. See Enron Oil Corp., 10 F.3d at 96; Franco, 2010 WL

3780972, at *2 (listing factors).

III. Jurisdiction and Venue

The Court “must satisfy itself that it has subject matter and personal jurisdiction before

rendering judgment against defendants.” Dumolo v. Dumolo, No. 17-CV-7294 (KAM)(CLP),

2019 WL 1367751, at *4 (E.D.N.Y. Mar. 26, 2019); see Covington Indus., Inc. v. Resintex A.G.,

629 F.2d 730, 732 (2d Cir. 1980) (“A judgment entered against parties not subject to the personal

jurisdiction of the rendering court is a nullity.”).

A. Subject Matter Jurisdiction

The Court has original jurisdiction over Plaintiff’s copyright claims pursuant to 28 U.S.C.

§ 1338(a), which states, “[th]he district courts shall have original jurisdiction of any civil action

arising under any Act of Congress relating to . . . copyrights.” See, e.g., Stokes v. Milkchocolatenyc

LLC, 681 F. Supp. 3d 226 (S.D.N.Y. 2023). Therefore, the undersigned respectfully recommends

a finding that the Court has subject matter jurisdiction over Plaintiff’s claims.

B. Personal Jurisdiction

“A court may not enter default judgment unless it has jurisdiction over the person of the

party against whom the judgment is sought, which also means that he must have been effectively

served with process.” BASF Corp. v. Original Fender Mender, Inc., No. 23-CV-2796 (HG)

(JAM), 2023 WL 8853704, at *5 (internal quotations and citation omitted). “Even where the Clerk

of the Court has entered the defendant’s default, [the] court may appropriately review the adequacy

of service before entering a default judgment.” Prescription Containers, Inc. v. Cabiles, No. 12-

CV-4805 (CBA) (VMS), 2014 WL 1236919, at *5 (E.D.N.Y. Feb. 14, 2014) (quotations and

citation omitted), report and recommendation adopted, 2014 WL 1237098 (E.D.N.Y. Mar. 25,

2014).

New York state law permits service to on a corporate defendant by “[p]ersonally delivering

to and leaving with the secretary of state or a deputy, or with any person authorized by the secretary

of state to receive such service, at the office of the department of state in the city of Albany,

duplicate copies of such process together with the statutory fee, which fee shall be a taxable

disbursement. Service of process on such corporation shall be complete when the secretary of state

is so served.” N.Y. Bus. Corp. Law § 306; Logan v. World Luxury Cars, Inc., No. 15-CV-00248

(ENV) (PK), 2022 WL 2466834, at *3-*4 (E.D.N.Y. Mar. 30, 2022), report and recommendation

adopted, 2023 WL 156878 (E.D.N.Y. Jan. 11, 2023) (finding such service proper). Here, Plaintiff

properly served Defendant by serving the New York Secretary of State on May 24, 2024. Dkt.

No. 6; see Perez v. Mesa Azteca Corp., No. 23-CV-9374 (HG) (TAM), 2024 WL 5274641, at *5

(E.D.N.Y. Dec. 5, 2024) (finding service upon Secretary of State lawful under N.Y. Bus. Corp.

Law § 306).

Therefore, the undersigned respectfully recommends a finding that service on Defendant

was proper in this case and the Court has personal jurisdiction over Defendant.

C. Venue

“[A]n entity with the capacity to sue and be sued in its common name under applicable

law, whether or not incorporated, shall be deemed to reside, if a defendant, in any judicial district

in which such defendant is subject to the court’s personal jurisdiction with respect to the civil

action in question . . . .” 28 U.S.C. § 1391(c)(2); see also 28 U.S.C. § 1400(a) (copyright cases

may be brought “in the district in which the defendant or his agent resides or may be found.”).

Here, venue is proper in this district because Defendant is subject to the Court’s personal

jurisdiction and its principal place of business is 1090 Coney Island Avenue, New York in Kings

County, New York. Dkt. No. 1 ¶ 6. Defendant also does business in this Judicial District and a

substantial part of the events or omissions giving rise to the claim occurred in this Judicial District.

Dkt. No. 1 ¶ 8-9.

IV. Procedural Compliance with Local Civil Rules 7.1 and 55.22

“A motion for default judgment will not be granted unless the party making the motion

adheres to all of the applicable procedural rules.” Annuity, Welfare & Apprenticeship Skill

Improvement & Safety Funds of Int’l Union of Operating Eng’rs, Loc. 15, 15A, 15C & 15D, AFL-

CIO v. Allstate Mapping & Layout, LLC, No. 22-CV-1831 (PKC) (TAM), 2023 WL 1475389, at

*1 (E.D.N.Y. Feb. 2, 2023) (quoting Century Surety Company v. Adweek, No. 16-CV-335

(ENV)(PK), 2018 WL 10466835, at *1 (E.D.N.Y. Jan. 9, 2018)). “[L]ocal rules have the force of

law, as long as they do not conflict with a rule prescribed by the Supreme Court, Congress, or the

Constitution.” See Fin. Servs. Vehicle Tr. v. Osmeña, No. 22-CV-7491 (RPK) (CLP), 2023 WL

7000935, at *2 (E.D.N.Y. Aug. 15, 2023) (internal quotation marks and citation omitted).

Under Local Civil Rule 7.1, a motion for default judgment must consist of a notice of

motion, a memorandum of law, and supporting affidavits and exhibits. Loc. Civ. R. 7.1(a). Under

Local Civil Rule 55.2, a “party seeking a judgment by default . . . shall append to the application

(1) the Clerk’s certificate of default, (2) a copy of the claim to which no response has been made,

2 The Local Rules of the United States District Court for the Southern and Eastern Districts of New York

were updated on January 2, 2025. As set forth in Local Rule 1.1, “these Local Civil Rules take effect on

January 2, 2025 (the “Effective Date”) and govern actions pending or filed on or after that date. For actions

pending on the Effective Date, if fewer than 14 days remain to perform an action governed by these Rules,

the provisions of the previous Local Rules effective on January 1, 2025 will govern.” Thus, given the

timing of the filing of the motion for default judgment on October 15, 2024, the prior Local Civil Rules—

dated July 1, 2024—are applicable here. The Local Rules dated January 2, 2025 are therefore not applicable

here, per Local Civil Rule 1.1.

and (3) a proposed form of default judgment,” and must mail these three items to the last known

residence of the defaulting party (if an individual). Loc. Civ. R. 55.2(b)-(c).

Here, Plaintiff has complied with Local Civil Rules 7.1 and 55.2. Plaintiff’s Motion

incudes a proper notice of motion and supporting affidavits with exhibits. See Dkt. Nos. 11-13.

These exhibits include the certificate of default. See Dkt. No. 13-4. Plaintiff has also included a

memorandum of law (Dkt. Nos. 14, 15) and a proposed form of default judgment. Dkt. No. 11-1.

Lastly, Plaintiff has also complied with the Court’s October 28, 2024 Order regarding serving

Defendant at its alternative addresses. See Dkt. No. 17.

Therefore, the undersigned respectfully recommends that Plaintiff has shown compliance

with Local Civil Rules 7.1 and 55.2.

V. Compliance with the Servicemembers Civil Relief Act

The Servicemembers Civil Relief Act (“SCRA”) requires a plaintiff seeking default

judgment to “file with the court an affidavit stating whether or not the defendant is in military

service and showing necessary facts to support the affidavit.” 50 U.S.C. § 3931; see also

Windward Bora, LLC v. Ortiz, No. 21-CV-04154 (MKB) (JMW), 2022 WL 3648622, at *5

(E.D.N.Y. July 5, 2022), report and recommendation adopted, 2022 WL 3647586 (E.D.N.Y. Aug.

24, 2022). Because Defendant is an entity and not an individual, this requirement is not at issue.

See Loc. 1992 Pension Fund v. All Serv. Equip. Corp, No. 22-CV-02522 (HG) (JMW), 2023 WL

11898244, at *3 (E.D.N.Y. July 28, 2023) (noting that the SCRA’s affidavit requirement does not

apply to corporate defendants).

VI. Default Judgment Factors

“A threshold question before reaching liability or damages is whether [the defaulting

defendant’s] conduct is sufficient to warrant default judgment being entered.” Annuity, Pension,

Welfare & Training Funds of the Int’l Union of Operating Eng’rs Loc. 14-14B, AFL-CIO v.

NAMOW, Inc., No. 17-CV-1469 (ARR) (SJB), 2018 WL 1440545, at *2 (E.D.N.Y. Feb. 28, 2018),

report and recommendation adopted, 2018 WL 1440542 (E.D.N.Y. Mar. 22, 2018). In

determining whether to enter a default judgment, the Court is guided by the same factors that apply

to a motion to set aside entry of a default. See Enron Oil Corp., 10 F.3d at 96. These factors

include “the willfulness of the default, the existence of a meritorious defense, and the level of

prejudice that the non-defaulting party may suffer” should the motion be denied. Pecarsky v.

Galaxiworld.com Ltd., 249 F.3d 167, 171 (2d Cir. 2001); see also Mason Tenders Dist. Council v.

Duce Constr. Corp., No. 02-CV-9044 (LTS) (GWG), 2003 WL 1960584, at *2 (S.D.N.Y. Apr.

25, 2003) (explaining that courts evaluate “1) whether the defendant’s default was willful; 2)

whether the defendant has a meritorious defense to plaintiff’s claims; and 3) the level of prejudice

the non-defaulting party would suffer as a result of the denial of the motion for default judgment.”).

Defendant’s failure to respond to the Complaint demonstrates the willfulness of its default.

As described above, Defendant was properly served with the Complaint through the Secretary of

State, as well as at its last-known addresses. See Dkt. Nos. 6, 17.

Notwithstanding that service, Defendant did not respond to the Complaint, did not appear,

and has not in any way attempted to defend this action, thus constituting willfulness in the context

of default judgment. See, e.g., Krevat v. Burgers to Go, Inc., No. 13-CV-6258 (JS) (AKT), 2014

WL 4638844, at *6 (E.D.N.Y. Sept. 16, 2014) (holding that defendant’s failure to appear

demonstrated willfulness of default); Sola Franchise Corp. v. Solo Salon Studios Inc., No. 14-CV-

946 (JS) (AKT), 2015 WL 1299259, at *6 (E.D.N.Y. Mar. 23, 2015) (“Defendant’s failure to

answer the Complaint and to respond to the instant motion is sufficient to establish willfulness.”).

As to the second factor, the Court cannot conclude whether Defendant has a meritorious

defense to the allegations in the Amended Complaint because Defendant did not appear in this

case to proffer any defenses. See Korzeniewski v. Sapa Pho Vietnamese Rest. Inc., No. 17-CV-

5721 (MKB) (SJB), 2019 WL 312149, at *3 (E.D.N.Y. Jan. 3, 2019) (“[T]he Court cannot

conclude there is any meritorious defense to the allegations because [the defendant] did not appear

nor present evidence of such a defense.”), report and recommendation adopted, 2019 WL 291145

(E.D.N.Y. Jan. 23, 2019). This factor therefore weighs in favor of entering default judgment. Sola

Franchise Corp., 2015 WL 1299259, at *6 (“Here, Defendant has not interposed an answer, nor

has it otherwise presented any defense to the Court. These factors weigh in favor of granting a

default judgment, and the allegations in Plaintiffs’ Complaint are deemed admitted.”); Krevat,

2014 WL 4638844, at *6 (“[W]here a defendant fails to answer the complaint, a court is unable

to make a determination whether the defendant has a meritorious defense to the plaintiff’s claims,

which circumstance weighs in favor of granting a default judgment.”).

As to the third factor, Plaintiff will suffer prejudice if its motion is denied because without

the entry of default judgment, Plaintiff could be left without the ability to recover against

Defendant for the claims set forth in the Complaint. See Grp. One Ltd. v. GTE GmbH, 625 F.

Supp. 3d 28, 60 (E.D.N.Y. 2022) (“Plaintiff will suffer prejudice if its motion is denied because

Plaintiff will be unable to recover against Defendants for the claims adequately set forth in its

Amended Complaint.”); Sola Franchise Corp., 2015 WL 1299259, at *15 (“denying this motion

would be prejudicial to [p]laintiffs ‘as there are no additional steps available to secure relief in this

Court’” (citation omitted)).

In sum, all three factors permit entry of a default judgment against Defendant. The Court

thus turns to evaluate liability and damages.

VII. Liability

Plaintiff alleges a single count of direct copyright infringement pursuant to 17 U.S.C. §§

501, et seq. Dkt. No. 1 ¶¶ 48-57.

“Under the Copyright Act of 1976, as amended, copyright protection attaches to ‘original

works of authorship’—prominent among them, literary, musical, and dramatic works—‘fixed in

any tangible medium of expression.’” Fourth Est. Pub. Benefit Corp. v. Wall-Street.com, LLC,

586 U.S. 296, 300-01 (2019) (quoting 17 U.S.C. § 102(a)). The Copyright Act grants copyright

owners the exclusive rights to reproduce the copyrighted work, “prepare derivative works based

upon the copyrighted work[,]” distribute copies of the copyrighted work to the public, and publicly

perform and display the copyrighted work. 17 U.S.C. § 106(1)-(6). A person or entity that violates

a copyright owner’s exclusive rights is liable for copyright infringement. 17 U.S.C. § 501; see

also Strike 3 Holdings, LLC v. Doe, No. 18-CV-5305 (DRH) (SIL), 2020 WL 6875260, at *3

(E.D.N.Y. Nov. 12, 2020), report and recommendation adopted, 2021 WL 21532 (E.D.N.Y. Jan.

4, 2021); Adlife Mktg. & Commc’ns Co. v. Best Yet Mkt., Inc., No. 17-CV-2978 (ADS) (ARL),

2017 WL 4564763, at *2 (E.D.N.Y. Oct. 11, 2017) (citing 17 U.S.C. § 501).

To establish a claim of copyright infringement, “the plaintiff must show: (i) ownership of

a valid copyright; and (ii) unauthorized copying of the copyrighted work.” Sohm v. Scholastic

Inc., 959 F.3d 39, 48 (2d Cir. 2020) (cleaned up); see Fema Test Answers, LLC v. Forest Smith,

No. 22-CV-1108 (MKB), 2024 WL 3178705, at *4 (E.D.N.Y. June 26, 2024) (describing elements

of copyright infringement claim). “Copyright infringement is a strict liability offense in the sense

that a plaintiff is not required to prove unlawful intent or culpability, [] and a user does not have

to share copyrighted works in order to infringe a copyright.” EMI Christian Music Grp., Inc. v.

MP3tunes, LLC, 844 F.3d 79, 89 (2d Cir. 2016) (citations omitted).

Here, Plaintiff has shown ownership of a valid copyright, see Dkt. No. 12-2, as well as

Defendant’s unauthorized copying of the copyrighted work, see Dkt. No. 12-3.

Applying these standards to the allegations in the Complaint, Plaintiff has established

Defendant’s liability for copyright infringement.

A. Ownership of Valid Copyrights

The first element of a copyright infringement claim requires proof of Plaintiff’s ownership

of valid copyrights to the Photograph.

A certificate of registration with the United States Register of Copyrights “constitutes

prima facie evidence of the valid ownership of a copyright, although that presumption of

ownership may be rebutted.” Fallows v. Vos Iz Neias LLC, No. 22-CV-7964 (ARR)(LB), 2023

WL 7497080, at *3 (E.D.N.Y. Oct. 25, 2023) (quoting Hamil Am., Inc. v. GFI, 193 F.3d 92, 99

(2d Cir. 1999)), report and recommendation adopted, 2023 WL 7522732 (E.D.N.Y. Nov. 13,

2023). “Alternatively, a plaintiff’s assertion of the existence of a valid copyright, even without

producing the certificate, is satisfactory in cases of default as the allegations in a complaint are

accepted as true.” Id.; see Renna v. Queens Ledger/Greenpoint Star Inc., No. 17-CV-3378 (DRH)

(SI)L, 2019 WL 1061259, at *3 (E.D.N.Y. Feb. 13, 2019) (collecting cases), report and

recommendation adopted, 2019 WL 1062490 (E.D.N.Y. Mar. 6, 2019).

Here, Plaintiff alleges that he own the copyrights to the Photograph and that the copyright

was registered with the United States Copyright Office. See Dkt. No. 1 ¶ 16. The effective date

of Plaintiff’s copyright to the Photograph is March 31, 2020, and the date of first publication is

February 21, 2020. Dkt. No. 15 ¶ 2. The copyright identification number is VA 2-205-005. Id.

These allegations, which the Court must accept as true, are sufficient to establish Plaintiff’s

ownership of valid copyrights to the Photograph. See Strike 3 Holdings, LLC v. Doe, No. 23-CV-

998 (ENV) (JAM), 2024 WL 3369986, at *8 (E.D.N.Y. July 11, 2024) (finding that plaintiff

established it was the owner of valid copyrights by alleging ownership and providing the copyright

registration numbers), report and recommendation adopted, July 31, 2024 Dkt. Order; Balhetchet

v. Su Caso Mktg. Inc., No. 19-CV-4475 (PKC) (SJB), 2020 WL 4738242, at *2 (E.D.N.Y. Aug.

14, 2020) (stating “[p]laintiff has alleged ownership and registration of a valid copyright, but has

not submitted a copy of the Certificate of Registration from the Copyright Office for the Video[.]

The Court nevertheless accepts his allegation as true.”); Renna, 2019 WL 1061259, at *3

(“Notwithstanding Plaintiff's failure to submit registration certificates or other evidence of

registration, the Court accepts this allegation as true for purposes of its liability analysis.”).

Accordingly, Plaintiff has established the first element of a copyright infringement claim

against Defendant.

B. Originality and Infringement

The second element of a copyright infringement claim requires proof that the Photograph

is an “original work,” and that Defendant copied the Photograph. See Balhetchet, 2020 WL

4738242, at *3 (“In order to establish the second element, [p]laintiff must meet a ‘minimal’ burden

to show that the Video is his original work and allege a violation of his exclusive rights under §

106.”).

A work is “original” if it “was independently created by the author (as opposed to copied

from other works), and [] it possesses at least some minimal degree of creativity.” Feist Publ’ns,

Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991) (citing 1 M. Nimmer & D. Nimmer,

Copyright §§ 2.01[A], [B] (1990)). The “minimal degree of creativity” standard is “extremely

low,” and “[t]he vast majority of works make the grade quite easily, as they possess some creative

spark.” Id.; see Gym Door Repairs, Inc. v. Young Equip. Sales, Inc., 206 F. Supp. 3d 869, 896

(S.D.N.Y. 2016) (“The requirements for originality are ‘modest.’” (quoting Weissmann v.

Freeman, 868 F.2d 1313, 1321 (2d Cir. 1989)). A plaintiff can establish originality based on the

author’s creative choices involving the “choice of timing, location, and subject matter” of the

works. Renna, 2019 WL 1061259, at *3. On a default judgment motion, the Court can also infer

originality from the plaintiff’s claim of authorship of the works. See Balhetchet, 2020 WL

4738242, at *3 (inferring originality from allegations in complaint).

Here, Plaintiff alleges that he is the owner of the Photograph. Dkt. No. 1 ¶ 2. The

Complaint specifies that “[i]n creating the Photograph, Plaintiff personally selected the subject

matter, timing, lighting, angle, perspective, depth, lens, and camera equipment used to capture the

image. Id. ¶15. These allegations are sufficient for Plaintiff to meet its “minimal burden” of

showing that the Photograph possesses some “minimal degree of creativity.” Balhetchet, 2020

WL 4738242, at *3 (“the originality of the Video can be inferred from Plaintiff’s claim to be the

author of the Video”); Korzeniewski, 2019 WL 312149, at *6 (holding that plaintiff established

originality by alleging that he was the sole creator of the subject image, which he described as

“original and unique”).

The Complaint also sufficiently alleges that Defendant infringed Plaintiff’s copyrights to

the Photograph by displaying it on its website without authorization. See Dkt. No. 1 ¶ 22. Plaintiff

supplied a screenshot of Defendant’s website featuring what appears to be the Photograph. See

Dkt. No. 1-2.

These allegations, which the Court accepts as true, are sufficient to establish that Defendant

copied “constituent elements” of Plaintiff’s photograph and, therefore, infringed Plaintiff’s

copyrights to it. See Malibu Media, LLC v. Greenwood, No. 17-CV-1099 (PAE) (SLC), 2019 WL

7580083, at *3 (S.D.N.Y. Dec. 17, 2019) (finding that plaintiff established defendant’s liability as

a matter of law where it alleged that defendant had downloaded and copied plaintiff’s films without

authorization), report and recommendation adopted, 2020 WL 209140 (S.D.N.Y. Jan. 14, 2020).

For these reasons, Plaintiff has established that the Photograph is an original work, and that

Defendant copied the Photograph in violation of the Copyright Act.

The undersigned therefore respectfully recommends that default judgment be entered in

favor of Plaintiff and against Defendant with respect to liability.

VIII. Damages

As Defendant’s liability has been established, the Court turns to evaluate damages. “While

a party’s default is deemed to constitute a concession of all well pleaded allegations of liability, it

is not considered an admission of damages.” Greyhound Exhibitgroup, Inc., 973 F.2d at 158.

“Rather, the Court must be satisfied that Plaintiff has met the burden of proving damages to the

Court with reasonable certainty.” Balhetchet, 2020 WL 4738242, at *3. A plaintiff may submit

documentary evidence or detailed affidavits to support their damages claim. Chen, 2023 WL

2583856, at *14.

Plaintiff seeks permanent injunctive relief pursuant to 17 U.S.C. § 502; statutory damages

for the infringement pursuant to 17 U.S.C. § 504; statutory filing fees and service costs pursuant

to 17 U.S.C. § 505; attorneys’ fees pursuant to 17 U.S.C. § 505; and post-judgment interest

pursuant to 28 U.S.C. § 1961(a). See Dkt. No. 11-1; see also Dkt. No. 14 at 17. The Court

addresses each request, in turn, below.

A. Permanent Injunctive Relief

Plaintiff seeks a permanent injunction enjoining Defendant from infringing Plaintiff’s

copyrighted Photograph and ordering Defendant to delete and permanently remove the Photograph

from its website. See Dkt. No. 11-1; Dkt. No. 1; see also Dkt. No. 14 (“Plaintiff requests the Court

issue an injunction permanently enjoining Defendant from displaying the Photograph on its

Website or in any alternative medium under the Defendant’s control.”).

Section 502(a) of the Copyright Act provides that any court may grant “final injunctions

on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.” 17

U.S.C. § 502(a). Thus, courts generally grant permanent injunctions where liability has been

established and there is a threat of continuing infringement. See Island Software & Computer

Serv., Inc., 2006 WL 1025915, at *2 (“[W]hen a copyright plaintiff has established liability and a

threat of continuing infringement, he is entitled to an injunction”); see also Richard Feiner & Co.

v. Turner Ent. Co., No. 96-CV-1472 (RO), 1998 WL 78180, at *2 (S.D.N.Y. Feb. 24, 1998) (noting

that it is an abuse of discretion for a court to deny a permanent injunction where copyright liability

has been established, and a threat of continuing infringement exists). Further, “[a] court may grant

a permanent injunction on a motion for default judgment.” Rovio Entm’t, Ltd. v. Allstar Vending,

Inc., 97 F. Supp. 3d 536, 546 (S.D.N.Y. 2015).

“A plaintiff seeking an injunction must show: ‘(1) irreparable injury in the absence of an

injunction, (2) the inadequacy of monetary damages alone, (3) that the balance of hardships tips in

its favor, and (4) that a permanent injunction would not disserve the public interest.’” Strike 3

Holdings, LLC, 2020 WL 6875260, at *4 (quoting John Wiley & Sons, Inc. v. Book Dog Books,

LLC, 327 F. Supp. 3d 606, 637 (S.D.N.Y. 2018)).

Here, all four factors weigh in Plaintiff’s favor. First, Plaintiff has alleged that Defendant

displayed his picture on its website and provided evidence of such. Dkt. No. 1 ¶¶22, 23. See, e.g.,

Korzeniewski v. Sapa Pho Vietnamese Rest. Inc., No. 17-CV-5721-MKB-SJB, 2019 WL 312149

(E.D.N.Y. Jan. 3, 2019), report and recommendation adopted, 2019 WL 291145 (E.D.N.Y. Jan.

23, 2019).

Second, “Defendant’s ability to continue his infringement absent an injunction shows that

monetary damages are insufficient to provide Plaintiff with relief.” See Rovio Entm’t, Ltd., 97 F.

Supp. 3d at 547 (finding monetary damages insufficient to provide relief where there existed a

danger that defendant might continue infringing).

Third, the balance of hardships favors Plaintiff as “it is axiomatic that an infringer . . .

cannot complain about the loss of ability to offer its infringing product.” Strike 3 Holdings, LLC,

2024 WL 3369986, at *11 (quoting Strike 3 Holdings, LLC, 2020 WL 6875260, at *4). Indeed,

an injunction will not prejudice Defendant – it will only prohibit it from continuing to infringe

Plaintiff’s copyrighted work. See 17 U.S.C. § 503(b); see also Malibu Media, LLC v. Baker, No.

18-CV-3263 (JGK) (BCM), 2020 WL 3978302, at *7 (S.D.N.Y. June 18, 2020) (“[t]here is no

hardship to Defendant because a permanent injunction will do no more than prevent Defendant

from engaging in further unlawful activity” (alteration in original)), report and recommendation

adopted, 2020 WL 3972736 (S.D.N.Y. July 13, 2020).

Finally, “[t]he public has a compelling interest in protecting copyright owners’ marketable

rights to their work so as to encourage the production of creative work.” Malibu Media, LLC v.

Doe, No. 19-CV-3806 (DRH) (SIL), 2020 WL 8093340, at *4 (E.D.N.Y. Dec. 2, 2020) (quoting

Beastie Boys, 87 F. Supp. 3d at 679). A permanent injunction will serve the public interest because

“it will protect copyrighted material and encourage compliance with the Copyright Act.” Strike 3

Holdings, LLC, 2024 WL 3369986, at *11 (quoting Baker, 2020 WL 3978302, at *7).

Accordingly, the undersigned respectfully recommends that Plaintiff’s request for a

permanent injunction prohibiting Defendant from further infringement of the Photograph be

granted. The undersigned further respectfully recommends that Defendant be ordered to delete

and permanently remove the Photograph, and cease display of the Photograph on its website. See

17 U.S.C. § 503(b) (authorizing courts to order the destruction of unauthorized copies of

copyrighted works); see also Strike 3 Holdings, LLC, 2024 WL 3369986, at *11 (recommending

that court grant request for injunction directing destruction of unauthorized copies in defendant’s

possession, custody, or control).

B. Statutory Damages

Plaintiff seeks statutory damages under 17 U.S.C. § 504(c) in the amount of $7,500.00,

which constitutes five times what he alleges is minimum fair market value. See Dkt. No. 12 ¶ 25.

Statutory damages are available to copyright owners who registered their copyright “[three]

months after the first publication of the work or [one] month after the copyright owner . . . learned

of the infringement[.]” 17 U.S.C. § 412; see also Strike 3 Holdings, LLC, 2020 WL 6875260, at

*3; Millennium TGA, Inc. v. Leon, No. 12-CV-1360 (MKB), 2013 WL 5719079, at *9 (E.D.N.Y.

Oct. 18, 2013) (citing 17 U.S.C. § 412). Plaintiff is eligible for statutory damages because the

effective date of Plaintiff’s copyright to the Photograph is March 31, 2020, and the date of first

publication is February 21, 2020. See Dkt. No. 15 ¶ 2; 17 U.S.C. § 412.

The Copyright Act provides for statutory damages “in a sum of not less than $750 or more

than $30,000 as the court considers just” for unintentional infringement and up to $150,000.00 for

willful infringement. 17 U.S.C. § 504(c)(1)-(2). Courts have “wide discretion” in determining the

amount of statutory damages to award. Greenwood, 2019 WL 7580083, at *3 (citing Fitzgerald

Publ’g Co. v. Baylor Publ’g Co., Inc., 807 F.2d 1110, 1116 (2d Cir. 1986)).

In determining the amount of statutory damages, courts in this Circuit consider the

following factors:

(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.

Myeress v. Elite Travel Group USA, No. 18-CV-340 (AJN), 2018 WL 5961424, at *3 (S.D.N.Y.

Nov. 14, 2018) (“[W]hen a defendant has acted willfully, a court should consider incorporating

both a compensatory and punitive component to discourage further wrongdoing by the defendants

and others.” See also Whitehead v. Mix Unit, LLC, No. 17-CV-9476 (VSB) (JLC), 2019 WL

384446, at *3 (S.D.N.Y. Jan. 31, 2019) (internal quotation marks and citation omitted), report and

recommendation adopted, 2019 WL 1746007 (S.D.N.Y. Apr. 18, 2019).

Here, “[i]n light of Defendant’s default, it is impossible for the Court to ascertain what, if

any, profits Defendant earned by infringing (factor two) or the value of the infringing material

(factor five).” Strike 3 Holdings LLC, 2020 WL 6875260, at *3. “Further, Plaintiff has provided

no information regarding revenue it lost as a result of Defendant's infringement (factor three).” Id.

“Nonetheless, the Court can evaluate Defendant’s state of mind and conduct from his default

(factors one and six), as well as the deterrent effect of damages on Defendant (factor four).” Id.

Regarding factors one and six, the Court can infer from Defendant’s default that Defendant

willfully infringed upon Plaintiff’s copyright. See Strike 3 Holdings LLC, 2020 WL 6875260, at

*3 (“[B]ased on [d]efendant’s default, the Court may infer that his infringement was willful.”);

Hounddog Prods., L.L.C. v. Empire Film Grp., Inc., 826 F. Supp. 2d 619, 631 (S.D.N.Y. 2011)

(“Courts frequently infer willfulness where a defendant defaults.”). Regarding factor four, “the

need to deter is great in cases where infringers, like [d]efendant, through the use of internet

downloads, work with others to infringe copyrights.” Strike 3 Holdings LLC, 2020 WL 6875260,

at *3; see also ee Malibu Media, LLC, 2020 WL 8093340 (finding the satisfaction of factors one,

four, and six sufficient to support an award of statutory damages).

Plaintiff requests $7,500.00, which constitutes five times what he alleges is minimum fair

market value. See Dkt. No. 12 ¶ 24-25. Plaintiff offered a comparable licensing fee of $790 for a

similar photograph yet requested statutory damages of $7,500 based on a five-times multiplier of

a $1,500 base fee. See id. Plaintiff’s reference point of $790 is based on a price quote for a

comparable picture on Getty images. Dkt. No. 12 ¶ 24. Getty images has been repeatedly

recognized as a legitimate reference point to determine appropriate fees in copyright cases.

See Seidman v. Yid Info Inc., No. 23 CV 7071 (NRM) (LB), 2024 WL 4664669, (E.D.N.Y. June

11, 2024) (approving the use of Getty images to approximate licensing fees for a photograph);

McDermott v. NYFireStore.com, Inc., No. 18-CV-10853, 2021 WL 952455, at *3 (S.D.N.Y. Jan.

15, 2021), report and recommendation adopted, 2021 WL 950507 (S.D.N.Y. Mar. 12, 2021)

(finding Getty Images estimate to be “adequate evidence of a comparable licensing fee” for

infringed photograph despite minor differences). Additionally, a five-times multiplier for

deterrence effect is proper in cases of willful infringement. See Mango v. BuzzFeed, Inc., 356 F.

Supp. 3d 368 (S.D.N.Y. 2019) (holding a five-times multiplier appropriate due to willful

infringement).

But Plaintiff offers no support for the $1,500 base fee other than that it is “reflective of

what [he] believe[s] is the minimum fair market value for my photograph.” Dkt. No. 12 ¶ 25. The

Court therefore applies the five times multiplier to the $790.00 figure instead of the $1,500.00.

Accordingly, this Court respectfully recommends that Plaintiff be awarded statutory

damages in the total amount of $3,950.00, representing a multiplier of five times the $790.00

licensing fee Plaintiff offers as a comparable rate. The Court can enter this award without

conducting a damages hearing. See Strike 3 Holdings, LLC, 2024 WL 3369986, at *12

(recommending award of statutory damages without holding a damages hearing); see also Frost

& Miller, LLP v. Heaven’s Way Inv. Tr., No. 21-CV-6648 (AT) (BCM), 2022 WL 540070, at *2

(S.D.N.Y. Feb. 22, 2022) (“The Court may conduct the inquiry based solely upon the written

submissions before it, see Action S.A. v. Marc Rich & Co., 951 F.2d 504, 508 (2d Cir. 1991)

(separate damages hearing not required), or may schedule an evidentiary hearing as to damages.”).

C. Attorneys’ Fees and Costs

In any civil action under the Copyright Act, “the court in its discretion may allow the

recovery of full costs by or against any party other than the United States or an officer thereof.”

17 U.S.C. § 505.

Plaintiff requests an award of costs in the amount of $460.00, comprised of $405 in

statutory filing and administrative fees and $55 in service charges. See Dkt. No. 15 ¶ 32. Plaintiff’s

request is supported by the process server’s invoice, counsel’s proof of payment, and Plaintiff’s

attorneys’ affirmation of the costs incurred. See Dkt. Nos. 13, 13-3. Plaintiff’s request to recover

his filing fee of $405.00 is further verified by the docket. See, e.g., Shalto v. Bay of Bengal Kabob

Corp., No. 12-CV-920 (KAM) (VMS), 2013 WL 867420, at *2 (E.D.N.Y. Mar. 7, 2013) (holding

that filing fees are recoverable without supporting documentation if verified by the docket); see

also Dkt. No. 1 (indicating that $405 filing fee was paid). Accordingly, the undersigned

respectfully recommends that Plaintiff be awarded costs of $460.00.

The Copyright Act also provides that a prevailing party may recover attorneys’ fees. 17

U.S.C. § 505 ([T]he court may . . . award a reasonable attorneys’ fee to the prevailing party[.]). A

fee award is not guaranteed but instead “lies within the sole and rather broad discretion of the

[c]ourt.” Baker v. Urban Outfitters, Inc., 431 F. Supp. 2d 351, 357 (S.D.N.Y. 2006); see also

Aiello v. Town of Brookhaven, No. 94-CV-2622 (FB) (WDW), 2005 WL 1397202, (E.D.N.Y. June

13, 2005) (reducing attorney fees to reasonable rates).

Plaintiff seeks attorneys’ fees in the amount of $2,370.00 based on 8.6 hours of work for

attorneys Craig Sanders and Joshua Vera as well as paralegals Julie Busch, Ronald Li, Ryan

Feldman, and Laura Costigan. See Dkt. No. 13 ¶ 24. Plaintiff includes timesheets in support of

this application. See id.

“District courts have broad discretion to determine the amount of attorneys’ fees awarded,

and the party requesting fees must submit documentation to support its request.” Perry v. High

Level Dev. Contracting & Sec. LLC, No. 12-CV-2180 (AMD) (PK), 2022 WL 1018791, at *14

(E.D.N.Y. Mar. 16, 2022), report and recommendation adopted, 2022 WL 1017753 (E.D.N.Y.

Apr. 5, 2022). “The starting point for determining the presumptively reasonable fee award is the

lodestar amount, which is the product of a reasonable hourly rate and the reasonable number of

hours required by the case.” Hennessy v. 194 Bedford Ave Rest. Corp., No. 21-CV-5434

(FB)(RML), 2022 WL 4134502, at *6 (E.D.N.Y. Aug. 8, 2022), report and recommendation

adopted, 2022 WL 4134437 (E.D.N.Y. Sept. 12, 2022) (internal citations and quotation marks

omitted). “To determine a reasonable hourly rate, courts consider market rates prevailing in the

community for similar services by lawyers of reasonably comparable skill, experience, and

reputation.” Id. (cleaned up). “If the Court finds that some of the time the attorney billed was not

reasonably necessary, it should reduce the time for which compensation is awarded accordingly.”

Perry, 2022 WL 1018791, at *14 (cleaned up). Where time entries are vague, duplicative, or

otherwise inadequate, a court may make an across-the-board reduction or percentage cut, in the

amount of hours. Id. “The applicant bears the burden to demonstrate reasonableness.” Sadowski v.

Yeshiva World News, LLC, No. 21-CV-7207 (AMD) (MMH), 2023 WL 2707096, at *8 (E.D.N.Y.

Mar. 16, 2023), report and recommendation adopted, 2023 WL 2742157 (E.D.N.Y. Mar. 31,

2023).

Here, the record shows that an award of attorneys’ fees is appropriate. Plaintiff asserts that

the Court should award attorneys’ fees based on the following hourly rates: $750.00 for senior

partner Craig Sanders; $250.00 for associate attorney Joshua Vera, $125.00 for paralegal Ronald

Li, and $150.00 for paralegals Julie Busch, Ryan Feldman, and Laura Costigan. See Dkt. No. 13,

at 3-5. In support of his application, Plaintiff provides timesheets and biographical information of

the attorneys who worked on this case. See Dkt. No. 13.

Mr. Sanders, a graduate of the University of Pennsylvania Law School, is a founding

partner in the law firms of Sanders Law, PLLC, Barshay Sanders, PLLC and Sanders Law Group.

Dkt. No. 13 ¶ 17. He was admitted to practice law in Florida in 1993 and New York in 1994 and

is admitted to multiple Circuit Courts of Appeals and the Unites States Supreme Court. Id. Mr.

Sanders seeks a rate of $750 per hour. Dkt. No. 13 ¶ 16.

Mr. Sanders has been previously denied a rate of $750.00. See Seidman v. Yid Info. Inc.,

No. 23-CV-7071 (NRM) (LB), 2024 WL 4664669 (E.D.N.Y. June 11, 2024) (“Mr. Sanders’[s]

requested hourly rate of $750 is nearly double the rate that courts have approved for partners in

this district. The Court instead finds $450 per hour is a reasonable rate for Mr. Sanders”). This

Court has some discretion to go above the standard rate. Ghahremani v. CRAFT for Kids Imps.,

Inc., No. 24-CV-04356 (FB) (LKE), 2025 WL 758636, at *2 (E.D.N.Y. Mar. 11,, 2025) (allowing

a partner to seek fees of $500 based on their experience and qualifications). There has also been

a recent shift in this district to allow fees for partners in the range of $450-650. Rubin v. HSBC

Bank USA, NA, 717 F. Supp. 3d 266, 270 (E.D.N.Y. 2024). In light of the relevant case law and

Mr. Sanders representations about his work in this case, see Dkt. No. 13, the Court finds that a

reasonable rate is $450 per hour. See Seidman 2024 WL 4664669, at *8 (also lowering Mr.

Sanders’ rate from $750 per hour to $450 per hour).

Mr. Vera graduated from law school in 2021 and is described as an associate attorney. See

Dkt. No. 13 ¶ 15. Mr. Vera focuses his practice on intellectual property matters. See id. Mr.

Vera’s requested rate is $250.00 per hour. Id. ¶ 14. Haker v. Tentree Int’l Inc., No. 20-CV-1499,

2021 WL 3884195, at *6 (E.D.N.Y. Aug. 31, 2021) (stating appropriate rates in this district as

$200 to $325 for senior associates, and $100 to $200 for junior associates). Mr. Vera is not

described as a senior associate and graduated from Touro University law school three years prior

to working on this case. Dkt. No. 13 ¶ 15. The Court therefore finds $200 to be a reasonable rate

for Mr. Vera. See Bay Park Ctr. for Nursing & Rehab. v. Philipson, 659 F. Supp. 3d 312, 318

(finding $200 per hour to be reasonable for an attorney with three years of experience).

Finally, Plaintiff asserts that one of the paralegals billed at a rate of $125.00 per hour, and

the other three paralegals billed at a rate of $150.00. Dkt. No. 13 ¶ 18-21. Morales, 2023 WL

7684775, at *8 (citing Montanes v. Avanti Pizza 2 Inc., No. 21-CV-586 (ERK), 2022 WL

17820103, at *8 (E.D.N.Y. Oct. 20, 2022) (collecting cases for the proposition that in default

judgment cases, paralegals are typically awarded a $75 hourly rate); Protection One Alarm

Monitoring, Inc. v. Executive Protection One Security Service, LLC, 553 F. Supp. 2d 201, 209

(E.D.N.Y. 2008) (“Where the moving party fails to provide information on the attorneys’ and

paralegals’ backgrounds and experience, courts have used their discretion to award fees at a rate

lower than requested”). No information is provided regarding the paralegals’ backgrounds or

experience. Where an applicant fails to provide background and experience information that

would enable a court to assess the reasonableness of a requested rate, a court may use its discretion

to award fees at a lower rate. Rudler v. Houslanger & Assocs., PLLC, No. 18-CV-7068

(SFJ)(AYS), 2020 WL 473619, at 12 (E.D.N.Y. Jan. 29, 2020). Jimenez v. Green Olive Inc., 744

F.Supp.3d 221, 238 (E.D.N.Y., 2024) (finding $75 per hour a reasonable rate for paralegals).

Consequently, the Court recommends that the paralegal hourly rates be lowered to $75

per hour.

Next, the court must determine the reasonableness of the number of hours expended by

counsel. Martinez v. New 168 Supermarket LLC, No. 19-CV-4526 (CBA) (SMG), 2020 WL

5260579, at *9 (E.D.N.Y. Aug. 19, 2020), report and recommendation adopted, 2020 WL

5259056 (Sept. 30, 2020). Courts examine the time records to exclude what appears to be

excessive or unnecessary hours and “with a view to the value of the work product of the specific

expenditures to the client’s case.” /d. (citations and quotations omitted). Here, Plaintiff's counsel

claims that 8.6 hours were worked. Dkt. No. 13 § 24. The time records include sufficient notes

as to what each hour entailed (id.) and the Court does not find that the work is excessive.

Therefore, the reasonable attorneys’ fee award is calculated as follows:

po Total Attorneys’ Fees | $1632.50

Accordingly, this Court respectfully recommends that Plaintiff be awarded costs in the

amount of $460.00 and attorneys’ fees in the amount of $1,632.50.

D. Post-judgment Interest

Finally, Plaintiff seeks, and is entitled to, post-judgment interest as of right. See Dkt. No.

11-1; see also 28 U.S.C. § 1961. “The very language of 28 U.S.C. § 1961 ensures that an award

of post-judgment interest is mandatory in any civil case where money damages are recovered.”

Duffy v. Ovster Bay Indus., Inc., No. 10-CV-3205 (ADS) (ETB), 2011 WL 2259798, at *3

(E.D.N.Y. Mar. 29, 2011), report and recommendation adopted, 2011 WL 2259749 (E.D.N-Y.

June 2, 2011); see also Strike 3 Holdings, LLC, 2024 WL 3369986, at *14 (recommending award

27

of post-judgment interest); Malibu Media, LLC, 2020 WL 8093340, at *5 (awarding post-judgment

interest in a copyright infringement case).

Accordingly, the undersigned respectfully recommends that Plaintiff be awarded post-

judgment interest at the current legal rate allowed and accruing under 28 U.S.C. § 1961(a), from

the date of the entry of judgment in this case until Defendant has satisfied the judgment.

IX. Conclusion

Accordingly, the undersigned respectfully recommends that Plaintiff’s Motion be granted

in part and denied in part.

A copy of this Report and Recommendation is being electronically served on counsel. This

Court directs Plaintiff’s counsel to serve a copy of this Report and Recommendation by overnight

mail and first-class mail to Defendant Vosa TV Inc at the below addresses by March 17, 2025:

Vosa TV Inc

1090 Coney Island Avenue

Brooklyn, NY 11230

V Telecommunications Inc.,

1090 Coney Island Avenue, Ste. 8

Brooklyn, NY 11230

Proof of service shall be filed on ECF by March 17, 2025. Any objections to this Report

and Recommendation must be filed within 14 days after service of this Report and

Recommendation. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). See also Fed. R. Civ. P.

6(a) & (d) (addressing computation of days). Any requests for an extension of time for filing

objections must be directed to Judge Garaufis. Failure to file objections within this period

designating the particular issues to be reviewed waives the right to appeal the district court’s order.

See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); Wagner & Wagner, LLP v. Atkinson, Haskins,

Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010); Kotlyarsky v. United

States Dep’t of Just., No. 22-2750, 2023 WL 7648618 (2d Cir. Nov. 15, 2023); see also Thomas

v. Arn, 474 U.S. 140 (1985).

Dated: Brooklyn, New York

March 14, 2025

SO ORDERED:

/s/ Joseph A. Marutollo

JOSEPH A. MARUTOLLO

United States Magistrate Judge