# Harbus v. Vosa TV Inc

> District Court, E.D. New York · April 21, 2025

URL: https://www.frixlaw.com/law-library/cases/10849956

## Case

- **Court:** District Court, E.D. New York
- **Decided:** April 21, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10849956

## How later opinions describe it (automated extraction)

- finding monetary damages insufficient to provide relief where there existed a danger that defendant might continue infringing
- holding a five-times multiplier appropriate due to willful infringement

## Opinion text

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:
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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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10849956. Public record. Not legal advice.