Case 3:20-cv-02723-JD Document 26 Filed 11/02/21 Page 1 of 4
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`CHRIS CRISMAN,
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`Plaintiff,
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`v.
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`MASJA VAN DER HOOG,
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`Defendant.
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`Case No. 20-cv-02723-JD
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`ORDER RE DEFAULT JUDGMENT
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`Re: Dkt. No. 20
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`This is a copyright infringement action brought by plaintiff Chris Crisman against
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`defendant Masja Van Der Hoog, d/b/a Aster Acupuncture (Aster), concerning the unlicensed use
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`of Crisman’s photograph on Aster’s website to promote its acupuncture, massage, and cupping
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`services in violation of the Copyright Act, 17 U.S.C. § 501. See Dkt. No. 1. Aster has failed to
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`appear in the action, and Crisman has moved for default judgment. Dkt. No. 20. The motion is
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`granted.
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`I.
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`JURISDICTION & SERVICE
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`“In default judgment proceedings, the Court has an affirmative duty to consider whether it
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`has jurisdiction over the subject matter and parties to the case.” FormFactor, Inc. v. Mr. Prober
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`Tech. Inc., No. 13-CV-03688-JD, 2015 WL 1870236, at *1 (N.D. Cal. Apr. 23, 2015) (citing In re
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`Tuli, 172 F.3d 707, 712 (9th Cir. 1999)). Because this is a copyright infringement case, the Court
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`has subject matter jurisdiction under 28 U.S.C. § 1338(a). The Court also has personal jurisdiction
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`over Aster, which has its principal place of business in Oakland, California. See Goodyear
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`Dunlop Tires Operations v. Brown, 564 U.S. 915, 924 (2011). The complaint and default
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`judgment papers were served on July 13, 2021. See Dkt. 25.
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`II.
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`DEFAULT JUDGMENT
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`“Under Federal Rule of Civil Procedure 55(b)(2), a party may apply to the Court for entry
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`of judgment by default against a defendant that has failed to defend against the action.” See
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`FormFactor, 2015 WL 1870236, at *2. “‘The district court’s decision whether to enter a default
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`judgment is a discretionary one.’” Id. (quoting Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.
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`Case 3:20-cv-02723-JD Document 26 Filed 11/02/21 Page 2 of 4
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`1980)). The decision is based on the following factors:
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`(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's
`substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at
`stake in the action; (5) the possibility of a dispute concerning material facts; (6)
`whether the default was due to excusable neglect, and (7) the strong policy
`underlying the Federal Rules of Civil Procedure favoring decisions on the merits.
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`Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).
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`The main inquiries under the Eitel factors are the merits of the claim and the sufficiency of
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`the complaint, which are typically considered together, “because after the entry of default, well-
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`pleaded allegations in the complaint are deemed true, except as to the amount of damages.”
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`FormFactor, 2015 WL 1870236, at *2 (quoting Fair Hous. of Marin v. Combs, 285 F.3d 899, 906
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`(9th Cir. 2002)).
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`To state a claim for copyright infringement, a plaintiff “must show ownership of the
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`allegedly infringed material” and “must demonstrate that the alleged infringer violated at least one
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`exclusive right granted to copyright holders under 17 U.S.C. § 106.” FormFactor, 2015 WL
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`1870236, at *2 (cleaned up) (citing Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th
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`Cir. 2007)). Crisman has done so here. The complaint alleges that he registered the photograph in
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`2011, and that Aster copied it without permission in violation of Crisman’s exclusive right to
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`“reproduce the copyrighted work” under 17 U.S.C. § 106(1). Dkt. No. 1 ¶¶ 11-12, 15-18.
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`Consequently, these factors weigh in favor of default judgment.
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`The other Eitel factors also favor entry of default judgment. Crisman will be prejudiced if
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`default judgment is not granted because he will be left with no way to recover for Aster’s
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`infringement. Broad. Music, Inc. v. JMN Rest. Mgmt. Corp., No. 14-CV-01190-JD, 2014 WL
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`5106421, at *2 (N.D. Cal. Oct. 10, 2014) (“BMI”). The amount of money at stake here (Crisman
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`seeks between $25,000 to $150,000), is high for a single infringement, but the Court has discretion
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`to award $750 in statutory damages per infringement, see infra Section III.A. Because Aster has
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`not appeared, despite service and other attempts to engage her in this litigation, there is “no
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`indication that [the] default is due to excusable neglect, that the material facts are subject to
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`dispute, or that a decision on the merits will be possible.” Id.
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`Case 3:20-cv-02723-JD Document 26 Filed 11/02/21 Page 3 of 4
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`III. THE RELIEF
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`Crisman asks for statutory damages, attorneys’ fees, and costs, with pre- and post-
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`judgment interest. Dkt. No. 20-1 at 6. He also seeks a permanent injunction pursuant to 17 U.S.C.
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`§ 502, enjoining Aster from further infringement.
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`A.
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`Statutory Damages
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`A copyright infringement plaintiff may recover either actual damages or statutory damages
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`under 17 U.S.C. § 504(a). Crisman has proposed to recover the latter, in a minimum amount of
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`$25,000. Section 504(c) of the Copyright Act provides for statutory damages “in a sum of not less
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`than $750 or more than $30,000 as the court considers just,” per infringement. Id. § 504(c)(1).
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`Additionally, if the “infringement was committed willfully, the court in its discretion may increase
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`the award of statutory damages to a sum of not more than $150,000.” Id. § 504(c)(2).
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`Crisman has alleged willful infringement, and these allegations are deemed true upon
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`default. See Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 702 (9th Cir. 2008). Even
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`so, an award of $25,000 as Crisman urges is not automatic. The Court has “wide discretion in
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`determining the amount of statutory damages to be awarded, constrained only by the specified
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`maxima and minima” in the Copyright Act. BMI, 2014 WL 5106421, at *3 (quoting Harris v.
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`Emus Records Corp., 734 F.2d 1329, 1335 (9th Cir.1984)).
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`Crisman says that a reasonable statutory damages award would be five times his licensing
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`fee for the exclusive use of a photograph for a one-year term, which ranges from $2,500 to $5,000.
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`Dkt. No. 20 at 10. This multiplier is too steep for the record in this case. To start, there is a “rule
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`of thumb” in infringement cases that damages should be approximately three times the amount of
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`the estimated licensing fee. BMI, 2014 WL 5106421, at *3. The circumstances here do not
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`warrant a scarcity multiplier. The photograph at issue depicts two masseuses performing
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`massages, and although Crisman says it required “significant skill in lighting and postproduction,”
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`Dkt. No. 1 ¶ 6, the photo is not especially rare or unique. See Stockfood America, Inc. v. Sequoia
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`Wholesale Florist, Inc., No. 20-cv-03597-DMR, 2021 WL 4597080, at *5-6 (N.D. Cal. June 22,
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`2021) (scarcity multiplier denied where plaintiff made only a “bare assertion” of scarcity), report
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`and recommendation adopted, No. 20-CV-03507-JD, 2021 WL 4595128 (N.D. Cal. Oct. 06,
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`Case 3:20-cv-02723-JD Document 26 Filed 11/02/21 Page 4 of 4
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`2021). In addition, only one act of infringement has been alleged, and Crisman acknowledges that
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`Aster removed the infringing photograph from the website after getting a take-down letter from his
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`lawyer. See Dkt. No. 14-2 (Grossbardt Decl.) ¶ 6.
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`Consequently, the Court concludes that a statutory damages award of $7,500 is reasonable.
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`This amount exceeds Crisman’s typical licensing fee at the upper end, and is an amount
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`proportionate to the claim and Aster’s removal of the photo from its website.
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`B.
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`Injunctive Relief
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`The request for a permanent injunction is denied. The Copyright Act authorizes an
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`injunction “on such terms as [the Court] may deem reasonable to prevent or restrain infringement
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`of a copyright.” 17 U.S.C. § 502(a). A permanent injunction is not necessary to restrain future
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`infringement in this case. Aster took down the photograph in response to counsel’s letter, and
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`Crisman has not proffered any evidence suggesting that Aster is likely to engage in future acts of
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`infringement of his works. See Flexible Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989,
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`998 (9th Cir. 2011) (“[E]ven in a copyright infringement case, the plaintiff must demonstrate a
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`likelihood of irreparable harm as a prerequisite for injunctive relief.”).
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`C.
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`Attorneys’ Fees, Costs, and Interest
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`Attorneys’ fees and costs are recoverable under the Copyright Act. 17 U.S.C. § 505.
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`Crisman seeks $10,782.50 in attorney’s fees and $880.86 in costs. Dkt. No. 20-2 ¶¶ 9, 11. These
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`fees are reasonable under the circumstances, particularly in light of Aster’s failure to respond to
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`service and other outreach about the litigation. The billing records adequately support the requests
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`for fees and costs. Interest at the statutory rate is granted on the judgment from the date it is
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`entered by the Court. See 28 U.S.C. § 1961. Pre-judgment interest is denied.
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`IT IS SO ORDERED.
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`Dated: November 2, 2021
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`JAMES DONATO
`United States District Judge
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