Case 5:19-cv-06399-LHK Document 35 Filed 12/08/20 Page 1 of 19
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`MICHAEL GRECCO PRODUCTIONS,
`INC.,
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`Plaintiff,
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`v.
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`ENTHUSIAST GAMING, INC.,
`Defendant.
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`Case No. 19-CV-06399-LHK
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`ORDER GRANTING IN PART AND
`DENYING IN PART MOTION FOR
`DEFAULT JUDGMENT
`Re: Dkt. No. 31
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`Northern District of California
`United States District Court
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`Before the Court is Plaintiff Michael Grecco Productions, Inc.’s (“Plaintiff”) renewed
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`motion for default judgment. ECF No. 31. Having considered the parties’ submissions, the
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`relevant law, and the record in this case, the Court GRANTS IN PART and DENIES IN PART
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`Plaintiff’s motion for default judgment.
`I.
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`BACKGROUND
`A. Factual Background
`Plaintiff is a photography agency with its principal place of business in Santa Monica,
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`California. ECF No. 1 (“Compl.”) ¶ 7. Plaintiff owns the copyrights to photographs taken by
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`Michael Grecco and licenses those photographs to third parties on his behalf. Id. ¶ 7. Plaintiff’s
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`business is to provide celebrity photographs to major media publications. Id. ¶ 13.
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`Case 5:19-cv-06399-LHK Document 35 Filed 12/08/20 Page 2 of 19
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`With respect to the instant case, Plaintiff is the owner and exclusive copyright holder of a
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`promotional still photograph (the “Photograph”) of actress Nana Visitor as Kira Nerys, a fictional
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`character from the television show “Star Trek: Deep Space Nine.” Id. ¶¶ 15–16. Plaintiff
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`registered the Photograph in compliance with the Copyright Act and obtained a Certificate with
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`Registration No. VA 1-736-729 (eff. July 7, 2010). Id. ¶ 16.
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`Defendant Enthusiast Gaming Inc. (“Defendant”) is a Canadian-owned corporation doing
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`business as Destructoid, headquartered in San Francisco, California. Id. ¶ 5. According to Plaintiff,
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`Defendant uses celebrity images to drive internet traffic to its website to increase advertising
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`revenue, and a large portion of Defendant’s revenue increases with the number of visitors who
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`click on its website and subsequently view featured third-party advertisements, id. ¶¶ 14, 19–20.
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`Plaintiff alleges that Defendant used Plaintiff’s Photograph on its website without license
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`by “prominently featuring” the Photograph to promote articles and content to increase viewership.
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`Id. ¶ 21. Specifically, Plaintiff alleges that Defendant published the Photograph on October 15,
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`2017 without any authorization or permission from Plaintiff. Id. ¶¶ 22–23. Plaintiff alleges that the
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`Photograph was published on Defendant’s website to accompany an article written by CJ
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`Andriessen, Defendant’s features editor. Id. Plaintiff states that Defendant continued to display the
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`Photograph through the filing of this complaint and only took down the Photograph earlier this
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`year. Id. ¶ 22; ECF No. 23 at 10. Plaintiff further alleges that Defendant did not pay a license fee,
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`inquire about the availability of a license, or confirm whether the Photograph had been authorized
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`for use on Defendant’s website before, during, or after its publication of the Photograph. Compl. ¶
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`28.
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`B. Procedural History
`On October 7, 2019, Plaintiff filed a complaint against Defendant that alleged two claims
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`for copyright infringement and vicarious and/or contributory copyright infringement. Compl.
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`¶¶ 29–49. Plaintiff sought both injunctive relief and statutory damages. Id. ¶ 2.
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`On January 2, 2020, Plaintiff filed a case management statement noting that “Defendant
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`was served with the summons and complaint, by substitute service, on November 11, 2019,” but
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`Case No. 19-CV-06399-LHK
`ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR DEFAULT JUDGMENT
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`Northern District of California
`United States District Court
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`Case 5:19-cv-06399-LHK Document 35 Filed 12/08/20 Page 3 of 19
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`that Defendant had not “appeared, answered, or otherwise responded to the complaint, and
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`plaintiff’s counsel ha[d] not been contacted by any counsel purporting to represent [D]efendant.”
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`ECF No. 10. On January 3, 2020, the Court ordered Plaintiff to file proof of service. ECF No. 12.
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`On January 3, 2020, Plaintiff filed a proof of service indicating that Plaintiff served Bill Doe, an
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`“[e]mployee at Earth Class mail,” in person on October 10, 2019 and by mail on October 14,
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`2019. ECF No. 13.
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`That same day, the Court ordered Plaintiff to file a statement that explained (1) why
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`service on Bill Doe was proper, and (2) why Plaintiff previously stated that Defendant was served
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`on November 11, 2019 when the proof of service stated that Defendant was served on October 10,
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`2019 and October 14, 2019. ECF No. 14. On January 5, 2020, Plaintiff filed a statement in
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`response to the Court’s order regarding service. ECF No. 15. Plaintiff addressed service of process
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`under California Code of Civil Procedure Section 415.20(a) and explained that service of the
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`summons and complaint did in fact occur on October 10, 2019 and October 14, 2019, as indicated
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`by the filed proof of service. Id. at 1–2, 3–4.
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`On February 8, 2020, Plaintiff moved for entry of default against Defendant. ECF No. 18.
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`On February 11, 2020, the Clerk entered default against Defendant. ECF No. 19. On April 7,
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`2020, Plaintiff filed a motion for default judgment. ECF No. 23.
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`On July 22, 2020, the Court denied Plaintiff’s motion for default judgment without
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`prejudice. ECF No. 30. The Court concluded that Plaintiff had not established that Defendant was
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`properly served for three reasons. Id. at 8–11. First, Plaintiff had not satisfied the requirements for
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`substitute service in California Code of Civil Procedure Section 415.20(a) because Plaintiff had
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`not stated that prepaid postage was included in mailing the summons and complaint to Defendant.
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`Id. at 8. Second, Plaintiff had not provided an affidavit of the person who served Defendant as
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`required by California Code of Civil Procedure Section 417.10(a). Id. at 9. Finally, Plaintiff had
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`not established that the summons included a notice as required by California Code of Civil
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`Procedure Section 412.30. Id. at 9–10. The Court thus denied Plaintiff’s motion for default
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`judgment without prejudice. The Court ordered Plaintiff to either (1) file a new motion for default
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`Case No. 19-CV-06399-LHK
`ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR DEFAULT JUDGMENT
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`Northern District of California
`United States District Court
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`

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`Case 5:19-cv-06399-LHK Document 35 Filed 12/08/20 Page 4 of 19
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`judgment and declarations and affidavits demonstrating compliance with the California Code of
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`Civil Procedure requirements or (2) propose a schedule for promptly serving Defendant. Id. at 11.
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`On August 18, 2020, Plaintiff filed the instant motion for default judgment. ECF No. 31
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`(“Mot.). Plaintiff also filed supporting declarations from Michael Grecco, the principal and owner
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`of Plaintiff; Peter Perkowski, counsel for Plaintiff in the instant case; and Joseph Buchanan, the
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`person who served Defendant. See Grecco Decl.; Perkowski Decl.; Buchanan Decl.
`II.
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`LEGAL STANDARD
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`Pursuant to Federal Rule of Civil Procedure 55(b)(2), the Court may enter a default
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`judgment when the Clerk, under Rule 55(a), has previously entered a party’s default. Fed. R. Civ.
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`P. 55(b). “The district court’s decision whether to enter a default judgment is a discretionary one.”
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`Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Once the Clerk enters default, all well-
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`pleaded allegations regarding liability are taken as true, except with respect to damages. See Fair
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`Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002) (“With respect to the determination
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`of liability and the default judgment itself, the general rule is that well-pled allegations in the
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`complaint regarding liability are deemed true.”); TeleVideo Sys. v. Heidenthal, 826 F.2d 915, 917–
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`18 (9th Cir. 1987) (“[U]pon default the factual allegations of the complaint, except those relating
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`to the amount of damages, will be taken as true.”); Philip Morris USA v. Castworld Prods., 219
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`F.R.D. 494, 499 (C.D. Cal. 2003) (“[B]y defaulting, Defendant is deemed to have admitted the
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`truth of Plaintiff's averments.”). “In applying this discretionary standard, default judgments are
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`more often granted than denied.” Philip Morris, 219 F.R.D. at 498.
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`“Factors which may be considered by courts in exercising discretion as to the entry of a
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`default judgment include: (1) the possibility of prejudice to the plaintiff, (2) the merits of
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`plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in
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`the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was
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`due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil
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`Procedure favoring decisions on the merits.” Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir.
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`1986).
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`Case No. 19-CV-06399-LHK
`ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR DEFAULT JUDGMENT
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`Northern District of California
`United States District Court
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`Case 5:19-cv-06399-LHK Document 35 Filed 12/08/20 Page 5 of 19
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`III. DISCUSSION
`A. Jurisdiction
`“When entry of judgment is sought against a party who has failed to plead or otherwise
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`defend, a district court has an affirmative duty to look into its jurisdiction over both the subject
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`matter and the parties. A judgment entered without personal jurisdiction over the parties is void.”
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`In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999) (citations omitted). In order to avoid the entry of an
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`order of default judgment that may subsequently be attacked as void, the Court must determine
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`whether jurisdiction over the instant case exists.
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`The Court begins with subject matter jurisdiction and then proceeds to personal
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`jurisdiction. For the Court to exercise personal jurisdiction over a defendant, the defendant must
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`also have been served in accordance with Federal Rule of Civil Procedure 4. Accordingly, the
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`Court then turns to service of process.
`1. Subject Matter Jurisdiction
`Here, Plaintiff brings this action pursuant to federal law, namely the Copyright Act of
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`1976, 17 U.S.C. § 101, et seq. Therefore, the Court is satisfied that the Court has subject matter
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`jurisdiction pursuant to 28 U.S.C. § 1331. 28 U.S.C. § 1331 (“The district courts shall have
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`original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the
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`United States.”). The Court proceeds to consider whether the Court possesses personal jurisdiction
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`over Defendant.
`2. Personal Jurisdiction
`“The party seeking to invoke the court’s jurisdiction bears the burden of establishing that
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`jurisdiction exists.” Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986) (citing Data Disc, Inc. v.
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`Sys. Tech. Assocs., 557 F.2d 1280, 1285 (9th Cir. 1977)). Personal jurisdiction over an out-of-state
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`defendant is appropriate if the relevant state’s long-arm statute permits the assertion of jurisdiction
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`without violating federal due process. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797,
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`800–01 (9th Cir. 2004). California’s long arm statute, Cal. Civ. Proc. Code § 410.10, is co-
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`extensive with federal due process requirements, and therefore the jurisdictional analyses under
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`Case No. 19-CV-06399-LHK
`ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR DEFAULT JUDGMENT
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`Northern District of California
`United States District Court
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`Case 5:19-cv-06399-LHK Document 35 Filed 12/08/20 Page 6 of 19
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`California law and federal due process merge into one. See Cal. Civ. Proc. Code § 410.10 (“[A]
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`court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of
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`this state or of the United States.”); Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1223
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`(9th Cir. 2011) (“California’s long-arm statute . . . is coextensive with federal due process
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`requirements, so the jurisdictional analyses under state law and federal due process are the
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`same.”).
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`For a court to exercise personal jurisdiction over a defendant consistent with due process,
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`that defendant must have “certain minimum contacts” with the relevant forum “such that the
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`maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”
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`Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457,
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`463 (1940)). In addition, “the defendant’s ‘conduct and connection with the forum State’ must be
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`such that the defendant ‘should reasonably anticipate being haled into court there.’” Sher v.
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`Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990) (quoting World-Wide Volkswagen Corp. v.
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`Woodson, 444 U.S. 286, 297 (1980)).
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`A court may exercise either general or specific jurisdiction over a defendant. Ziegler v.
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`Indian River Cty., 64 F.3d 470, 473 (9th Cir. 1995). In the instant case, the Court concludes that
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`the exercise of general jurisdiction is appropriate.
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`General jurisdiction exists when a defendant is physically present or when a defendant’s
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`activities in the state are “continuous and systematic” such that the contacts approximate physical
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`presence in the forum state. See Schwarzenegger, 374 F.3d at 801 (citation omitted). “With respect
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`to a corporation, the place of incorporation and principal place of business are ‘paradig[m] . . .
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`bases for general jurisdiction.’” Daimler AG v. Bauman, 571 U.S. 117, 137 (2014) (citation
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`omitted). A corporation’s principal place of business “refers to the place where a corporation's
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`high level officers direct, control, and coordinate the corporation's activities . . . . which will
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`typically be found at its corporate headquarters.” Hertz Corp. v. Friend, 559 U.S. 77, 80–81
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`(2010).
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`Here, Plaintiff alleges that Defendant’s principal place of business is in San Francisco,
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`Case No. 19-CV-06399-LHK
`ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR DEFAULT JUDGMENT
`
`Northern District of California
`United States District Court
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`

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`Case 5:19-cv-06399-LHK Document 35 Filed 12/08/20 Page 7 of 19
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`California. Compl. ¶¶ 5, 9. Specifically, Plaintiff alleges that Defendant’s principal and only
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`official place of business is at 548 Market Street, San Francisco, California. ECF No. 15 at 2–3.
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`On this basis, the Court finds that Defendant has “substantial” and “continuous and systematic”
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`contacts with California that support the Court’s exercise of general personal jurisdiction. See
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`Schwarzenegger, 374 F.3d at 801 (general jurisdiction exists where a defendant has “continuous
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`and systematic general business contacts . . . that approximate physical presence in the forum
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`state” (citations omitted)); see also Golden West Veg, Inc. v. Bartley, Case No. 16-CV-03718-
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`LHK, 2017 WL 2335602, at *4 (N.D. Cal. May 30, 2017) (finding Plaintiff established personal
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`jurisdiction for purposes of default judgment by alleging that Defendant had a principal place of
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`business in Salinas, California). Accordingly, Defendant is subject to this Court’s general
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`jurisdiction.
`3. Service of Process
`Finally, for the Court to properly exercise personal jurisdiction over a defendant, the
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`defendant must have been served in accordance with Federal Rules of Civil Procedure. See
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`Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982) (“Defendants must be served in
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`accordance with Rule 4(d) of the Federal Rules of Civil Procedure, or there is no personal
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`jurisdiction.” (footnote omitted)); see also Pension Tr. Fund for Operating Eng’rs v. Kickin
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`Enters., Case No. C-11-03685 JCS, 2012 WL 6711557, at *3 (N.D. Cal. Dec. 20, 2012) (“[W]here
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`entry of default judgment is requested, the Court must determine whether service of process was
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`adequate.”).
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`Under the Federal Rules of Civil Procedure, a domestic or foreign corporation must be
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`served in a judicial district of the United States and may be served by “following state law for
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`serving a summons in an action brought in courts of general jurisdiction in the state where the
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`district court is located or where service is made.” Fed. R. Civ. P. 4(h)(1), 4(e)(1).
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`In the instant case, Plaintiff asserts that Defendant was properly served by substitute
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`service under California Code of Civil Procedure Section 415.20(a). ECF No. 15 at 2. Section
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`415.20(a) requires (1) that a copy of the summons and complaint be left during usual office hours
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`Case No. 19-CV-06399-LHK
`ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR DEFAULT JUDGMENT
`
`Northern District of California
`United States District Court
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`

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`Case 5:19-cv-06399-LHK Document 35 Filed 12/08/20 Page 8 of 19
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`at the company’s office; (2) that the summons and complaint be left “with the person who is
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`apparently in charge thereof”; and (3) that after the summons and complaint are left, a copy of the
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`summons and complaint be mailed with prepaid postage “to the person to be served at the place
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`where a copy of the summons and complaint were left.” Cal. Civ. Proc. Code § 415.20(a).
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`As to the first element, Plaintiff filed a proof of service indicating that substitute service
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`was effectuated on “Bill Doe, Employee at Earth Class mail” at 548 Market Street, San Francisco,
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`California at 12:15 p.m. on October 10, 2019. ECF No. 13. Though Earth Class mail is a private
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`post office box rental store, under Section 415.20, defendants may be properly served at such
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`“private post office box rental store[s].” Hearn v. Howard, 177 Cal. App. 4th 1193, 1202 (2009);
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`see Sweeting v. Murat, 221 Cal. App. 4th 507, 513 (2013) (“[S]ervice at a private or commercial
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`post office box is allowed [pursuant to Section 415.20].” (citation omitted)); Painaway Australia
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`Pty Ltd. Acn 151 146 977 v. Natures Investments Holding Pty Ltd., Case No. 15-CV-03276-DMR,
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`2016 WL 304780, at *4 (N.D. Cal. Jan. 26, 2016) (“[S]ubstitute service at a private post office box
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`rental store may constitute sufficient service under section 415.20 . . . .”). As such, Plaintiff has
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`established that a copy of the summons and complaint were left during usual office hours at the
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`company’s office.
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`As to the second element, Plaintiff indicates that Bill Doe is “authorized to accept mail and
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`deliveries” on Defendant’s behalf. ECF No. 13. Indeed, this is sufficient under California law, as
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`“[t]he purpose of section 415.20 [is] achieved by service on the clerk at the post office box store
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`where [defendant] rented a post office box.” Hearn, 177 Cal. App. 4th at 1203. Therefore, Plaintiff
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`has established that the summons and complaint were left with the person who was apparently in
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`charge of Defendant’s office.
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`As to the third element, the Court concludes that Plaintiff has cured the previously
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`identified deficiency by providing a declaration from Joseph Buchanan, the person who served
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`Defendant. The declaration of Mr. Buchanan states that, after Mr. Buchanan gave Bill Doe a copy
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`of the summons and complaint, Mr. Buchanan sent a copy of the summons and complaint to
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`Destructoid at 548 Market Street, San Francisco, California. Buchanan Decl. ¶ 4. The summons
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`Case No. 19-CV-06399-LHK
`ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR DEFAULT JUDGMENT
`
`Northern District of California
`United States District Court
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`

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`Case 5:19-cv-06399-LHK Document 35 Filed 12/08/20 Page 9 of 19
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`and complaint were in an envelope which was “sent first class and had sufficient postage affixed
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`to it for that purpose.” Id. Accordingly, Plaintiff has established that a copy of the summons and
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`complaint were mailed with prepaid postage to the person to be served at the place where a copy
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`of the summons and complaint were left. Thus, Plaintiff has established that Defendant was
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`properly served under Section 415.20(a).
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`In addition to meeting Section 415.20(a)’s requirements, Plaintiff is also required to satisfy
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`California Code of Civil Procedure Sections 417.10(a) and 412.30 in order for substitute service to
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`be proper. Section 417.10(a) requires that, when a corporation is served by substitute service under
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`Section 415.20, Plaintiff must show “[p]roof that a summons was served . . . by the affidavit of the
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`person making the service showing the time, place, and manner of service and facts showing that
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`the service was made in accordance with this chapter.” Cal. Civ. Proc. Code § 417.10(a).
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`The affidavit required by Section 417.10(a) must show that “the notice required by
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`[California Code of Civil Procedure] Section 412.30 appeared on the copy of the summons served,
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`if in fact it did appear.” Cal. Civ. Proc. Code § 417.10(a). Section 412.30 requires that a copy of
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`the summons to be served contain a notice “stating in substance: ‘To the person served: You are
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`hereby served in the within action (or special proceeding) on behalf of [the corporation being
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`served] as a person upon whom a copy of the summons and of the complaint may be delivered to
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`effect service on said party under the provisions of [Sections 415.20(a) and 417.10(a)].’” Cal. Civ.
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`Proc. Code § 412.30. “Section 412.30 does not say that any specific words must be used in the
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`notice[,] only that the notice shall state ‘in substance’ the provisions of the section.” Cory v.
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`Crocker Nat’l Bank, 123 Cal. App. 3d 665, 669 (1981). If the notice required by Section 412.30
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`“does not appear on the copy of the summons served, no default may be taken against such
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`corporation or incorporated association or against such person individually, as the case may be.”
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`Cal. Civ. Proc. Code § 412.30.
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`In the instant case, on January 3, 2020, Plaintiff filed a proof of service signed by Mr.
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`Buchanan, who served Defendant. See ECF No. 13. In support of the instant motion for default
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`judgment, Plaintiff filed a declaration of Mr. Buchanan which supplements the information in the
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`Case No. 19-CV-06399-LHK
`ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR DEFAULT JUDGMENT
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`Northern District of California
`United States District Court
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`Case 5:19-cv-06399-LHK Document 35 Filed 12/08/20 Page 10 of 19
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`proof of service. Buchanan Decl. The proof of service and the declaration indicate the time, place,
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`and manner of service. ECF No. 13; Buchanan Decl. ¶ ¶ 3–4. Although the proof of service does
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`not state that Mr. Buchanan subsequently mailed a copy of the summons and complaint with
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`prepaid postage, Mr. Buchanan’s declaration includes this information. Buchanan Decl. ¶ 4.
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`Furthermore, Mr. Buchanan’s declaration indicates that “[t]he summons served on Destructoid
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`contain[ed] a notice that, in substance, informed Destructoid that it was the entity being served in
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`this action, in accordance with California Code of Civil Procedure § 412.30.” Id. ¶ 5. Accordingly,
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`the Court concludes that Plaintiff has established that Defendant was served in accordance with
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`Sections 417.10(a) and 412.30 and has cured the previously identified service deficiencies.
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`Indeed, in its order denying default judgment, this Court cited to Harrington v. Equity
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`Asset & Property Management, which included the same service deficiencies that were present in
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`Plaintiff’s previous motion for default judgment. ECF No. 30 at 8–10. In a subsequent order in
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`Harrington, the district court concluded that the plaintiff had cured the service deficiencies.
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`Harrington v. Equity Asset & Property Mgmt., Case No. 18-CV-00216-GPC, 2019 WL 9089614,
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`at *1 n.1 (S.D. Cal. Oct. 24, 2019). First, the plaintiff had established that the summons and
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`complaint were mailed with prepaid postage to the person to be served. Id. Second, the plaintiff
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`had filed an affidavit of the person making service. Id. Third, the plaintiff had substantially
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`complied with Section 412.30. Id. In the instant case, Plaintiff has established compliance, and not
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`merely substantial compliance, with Section 412.30. Buchanan Decl. ¶ 5. Thus, like the plaintiff in
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`Harrington, Plaintiff has cured the service deficiencies previously identified by this Court.
`B. Whether Default Judgment is Proper
`Having determined that the exercise of subject matter jurisdiction and personal jurisdiction
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`over Defendant is proper, the Court now turns to the Eitel factors to determine whether entry of
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`default judgment against Defendant is warranted.
`1. First Eitel Factor: Possibility of Prejudice
`Under the first Eitel factor, the Court considers the possibility of prejudice to a plaintiff if
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`default judgment is not entered against a defendant. “A plaintiff who is denied a default judgment
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`Case No. 19-CV-06399-LHK
`ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR DEFAULT JUDGMENT
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`Northern District of California
`United States District Court
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`and is subsequently left without any other recourse for recovery has a basis for establishing
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`prejudice.” DiscoverOrg Data, LLC v. Bitnine Global, Inc., Case No. 19-CV-08098-LHK, 2020
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`WL 6562333, at *5 (N.D. Cal. Nov. 9, 2020) (quotation omitted). Here, Plaintiff has established
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`that Plaintiff will be prejudiced because Defendant has not participated in this litigation and
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`Plaintiff would be without recourse to recover for the damages caused by Defendant. Therefore,
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`the first Eitel factor weighs in favor of granting default judgment.
`2. Second and Third Eitel Factors: Merits of Plaintiffs’ Substantive Claims and the
`Sufficiency of the Complaint
`The second and third Eitel factors address the merits and sufficiency of Plaintiff’s claims
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`as pleaded in the Complaint. Courts often analyze these two factors together. See Dr. JKL Ltd. v.
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`HPC IT Educ. Ctr., 749 F. Supp. 2d 1038, 1048 (N.D. Cal. 2010) (“Under an Eitel analysis, the
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`merits of plaintiff’s substantive claims and the sufficiency of the complaint are often analyzed
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`together.”). In its analysis of the second and third Eitel factors, the Court will accept as true all
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`well-pled allegations regarding liability. See Fair Hous. of Marin, 285 F.3d at 906 (“[T]he general
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`rule is that well-pled allegations in the complaint regarding liability are deemed true.”). The Court
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`will therefore consider the merits of Plaintiff’s claims and the sufficiency of the Complaint
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`together.
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`Plaintiff asserts two claims against Defendant: (1) copyright infringement in violation of
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`17 U.S.C. § 501, et seq., and (2) vicarious and/or contributory copyright infringement. However,
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`Plaintiff’s motion for default judgment addresses the merits of only Plaintiff’s claim for copyright
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`infringement. See Mot. at 11–12. Because Plaintiff’s motion for default judgment does not address
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`Plaintiff’s claim for vicarious and/or contributory copyright infringement, the Court DENIES
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`default judgment as to that claim and addresses only Plaintiff’s claim for copyright infringement.
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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[] violate[d] at least
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`one exclusive right granted to copyright holders under 17 U.S.C. § 106.” A&M Records, Inc. v.
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`Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001). The Court addresses each of these
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`Case No. 19-CV-06399-LHK
`ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR DEFAULT JUDGMENT
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`Case 5:19-cv-06399-LHK Document 35 Filed 12/08/20 Page 12 of 19
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`requirements in turn.
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`First, Plaintiff sufficiently alleges its ownership of a copyright that protects the
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`Photograph. “A copyright registration is ‘prima facie evidence of the validity of the copyright and
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`the facts stated in the certificate.’” United Fabrics Int’l, Inc. v. C&J Wear, Inc., 630 F.3d 1255,
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`1257 (9th Cir. 2011) (quoting 17 U.S.C. § 410(c)). Plaintiff provides a copyright registration for
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`the Photograph, which lists Plaintiff as the owner of the Photograph. ECF No. 31 at 25 (copyright
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`certificate of registration); see also Compl. ¶ 16 (providing the copyright registration number and
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`date of registration and stating that the copyright was registered to Plaintiff); Grecco Decl. ¶ 2
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`(stating that Plaintiff “is the exclusive owner of the copyrights in and to the Photograph”). Thus,
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`Plaintiff adequately alleges the ownership of a copyright.
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`Second, Plaintiff sufficiently alleges that Defendant violated an exclusive right granted to
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`copyright holders under 17 U.S.C. § 106. Reproduction of copyright works and public display of
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`pictoral works are some of the exclusive rights of a copyright owner. 17 U.S.C. § 106(1), (5). In
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`the instant case, Plaintiff alleges that Defendant made and published copies of the Photograph
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`without authorization or license from Plaintiff. Compl. ¶¶ 21–24. Specifically, Defendant
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`published the Photograph in an article on October 15, 2017 and did not take it down until earlier
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`this year. Id. ¶ 22; ECF No. 23 at 10. Defendant did not have authorization to copy or display the
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`Photograph, and Defendant did not pay a license fee. Compl. ¶ 23. Therefore, Plaintiff adequately
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`pleads that Defendant violated an exclusive right granted to copyright holders.
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`Because the Court concludes that Plaintiff has adequately stated a copyright claim, the
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`second and third Eitel factors weigh in favor of granting default judgment as to this claim.
`3. Fourth Eitel Factor: The Amount of Money at Stake
`Under the fourth Eitel factor, “the court must consider the amount of money at stake in
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`relation to the seriousness of Defendant’s conduct.” PepsiCo Inc. v. Cal Sec. Cans, 238 F. Supp.
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`2d 1172, 1176 (C.D. Cal. 2002); see also Eitel, 782 F.2d at 1471-72. “The Court considers
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`Plaintiff’s declarations, calculations, and other documentation of damages in determining if the
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`amount at stake is reasonable.” Trung Giang Corp. v. Twinstar Tea Corp., Case No. C 06-03594
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`Northern District of California
`United States District Court
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`JSW, 2007 WL 1545173, at *12 (N.D. Cal. May 29, 2007).
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`Default judgment is disfavored when a large amount of money is involved or is
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`unreasonable in light of the potential loss caused by the defendant’s actions. Id. Nonetheless,
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`courts have found that this factor “presents no barrier to default judgment” as long as the potential
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`damages were “proportional to the harm alleged.” See Liu Hongwei v. Velocity V Ltd.,