Case 1:09-cv-00625-RMU Document 9 Filed 10/04/10 Page 1 of 10
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`Civil Action No.:
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`09-0625 (RMU)
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`Re Document No.:
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`MESERETU WONDIE,
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`Plaintiff,
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`v.
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`RAHEAL MEKURIA,
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`Defendant.
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`MEMORANDUM OPINION
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`GRANTING THE PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT
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`I. INTRODUCTION
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`This matter is before the court on the plaintiff’s motion for default judgment. The
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`plaintiff, an artist of Ethiopian origin, commenced this action for copyright infringement under
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`the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq., claiming that the defendant produced and
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`sold unauthorized copies of one of his copyrighted paintings. The defendant has not responded
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`to the plaintiff’s complaint or otherwise participated in this litigation. For the reasons discussed
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`below, the court grants the plaintiff’s motion for default judgment and awards him injunctive and
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`monetary relief.
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`II. FACTUAL & PROCEDURAL BACKGROUND
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`The plaintiff is an artist of Ethiopian origin whose paintings center on his Ethiopian
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`heritage and have been exhibited internationally. Compl. ¶¶ 9-10. He is the creator of an
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`original painting titled “Meskelathe Beza” (“the Painting”), for which he owns a registered
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`United States copyright. Id. ¶ 1, Ex. B. The defendant is the owner of a store located in the
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`District of Columbia that sells Ethiopian food, clothing, music and art. Id. ¶ 5. In 1993, the
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`Case 1:09-cv-00625-RMU Document 9 Filed 10/04/10 Page 2 of 10
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`defendant purchased a set of poster prints of the Painting, at ten dollars per print, for the
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`purposes of reselling them at her store. Id. ¶ 2; Pl.’s Decl. ¶ 5. Each print contained a copyright
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`notice. Compl. ¶ 13. Between 1993 and 2003, the defendant occasionally bought more prints
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`from the plaintiff to replenish her supply. Pl.’s Decl. ¶ 6.
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`In May 2006, the plaintiff visited the defendant’s store and observed at least fifteen
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`unauthorized copies of the Painting on sale for seven to ten dollars. Id. ¶ 9. The unauthorized
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`copies did not contain the plaintiff’s copyright notice. Compl. ¶ 13. The plaintiff purchased one
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`unauthorized copy of the Painting at the defendant’s store for seven dollars. Pl.’s Decl. ¶ 9; Pl.’s
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`Mot., Ex. D.
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`On April 6, 2009, the plaintiff filed a complaint against the defendant for copyright
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`infringement. See generally Compl. The plaintiff served the defendant on April 29, 2009 by
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`leaving a copy of the summons and complaint with the defendant’s husband at her residence.
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`Pl.’s Aff. of Serv. Because the defendant failed to appear, plead or otherwise defend herself in
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`this action, the Clerk of the Court entered default against the defendant on September 4, 2009.
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`Entry of Default (Sept. 4, 2009). On May 10, 2010, the plaintiff filed this motion for default
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`judgment, seeking a permanent injunction and monetary damages. See generally Pl.’s Mot.
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`Despite being served with a copy of this motion, the defendant has failed to respond.
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`III. ANALYSIS
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`A. Legal Standard for Entry of Default Judgment Under Rule 55(b)(2)
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`A court has the power to enter default judgment when a defendant fails to defend its case
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`appropriately or otherwise engages in dilatory tactics. Keegel v. Key W. & Caribbean Trading
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`Co., 627 F.2d 372, 375 n.5 (D.C. Cir. 1980). Rule 55(a) of the Federal Rules of Civil Procedure
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`Case 1:09-cv-00625-RMU Document 9 Filed 10/04/10 Page 3 of 10
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`provides for entry of default “[w]hen a party against whom a judgment for affirmative relief is
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`sought has failed to plead or otherwise defend as provided by these rules.” FED. R. CIV. P. 55(a).
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`Upon request of the party entitled to default, Rule 55(b)(2) authorizes the court to enter against
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`the defendant a default judgment for the amount claimed and costs. Id. 55(b)(2).
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`Because courts strongly favor resolution of disputes on their merits, and because “it
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`seems inherently unfair” to use the court’s power to enter judgment as a penalty for filing delays,
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`modern courts do not favor default judgments. Jackson v. Beech, 636 F.2d 831, 835 (D.C. Cir.
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`1980). Accordingly, default judgment usually is available “only when the adversary process has
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`been halted because of an essentially unresponsive party . . . [as] the diligent party must be
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`protected lest he be faced with interminable delay and continued uncertainty as to his rights.” Id.
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`at 836 (quoting H. F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691
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`(D.C. Cir. 1970)).
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`Default establishes the defaulting party’s liability for the well-pleaded allegations of the
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`complaint. Adkins v. Teseo, 180 F. Supp. 2d 15, 17 (D.D.C. 2001); Avianca, Inc. v. Corriea,
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`1992 WL 102999, at *1 (D.D.C. Apr. 13, 1992); see also Brock v. Unique Racquetball & Health
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`Clubs, Inc., 786 F.2d 61, 65 (2d Cir. 1986) (noting that “default concludes the liability phase of
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`the trial”). Default does not, however, establish liability for the amount of damage that the
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`plaintiff claims. Shepherd v. Am. Broad. Cos., Inc., 862 F. Supp. 486, 491 (D.D.C. 1994),
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`vacated on other grounds, 62 F.3d 1469 (D.C. Cir. 1995). Instead, “unless the amount of
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`damages is certain, the court is required to make an independent determination of the sum to be
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`awarded.” Adkins, 180 F. Supp. 2d at 17; see also Credit Lyonnais Secs. (USA), Inc. v.
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`Alcantara, 183 F.3d 151, 155 (2d Cir. 1999) (stating that the court must conduct an inquiry to
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`ascertain the amount of damages with reasonable certainty). The court has considerable latitude
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`Case 1:09-cv-00625-RMU Document 9 Filed 10/04/10 Page 4 of 10
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`in determining the amount of damages. Jones v. Winnepesaukee Realty, 990 F.2d 1, 4 (1st Cir.
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`1993). To fix the amount, the court may conduct a hearing. FED. R. CIV. P. 55(b)(2). The court
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`is not required to do so, however, “as long as it ensure[s] that there [is] a basis for the damages
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`specified in the default judgment.” Transatlantic Marine Claims Agency, Inc. v. Ace Shipping
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`Corp., Div. of Ace Young Inc., 109 F.3d 105, 111 (2d Cir. 1997).
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`B. The Court Grants the Plaintiff’s Motion for Entry of Default Judgment
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`1. The Defendant’s Default Establishes Her Liability for Copyright Infringement
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`The defendant’s default in this action establishes her liability for the well-pleaded
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`allegations in the plaintiff’s complaint. Adkins, 180 F. Supp. 2d at 17. Accordingly, the plaintiff
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`argues that the defendant is liable for copyright infringement and that the court should enter a
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`default judgment. Pl.’s Mot. at 2-3.
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`To establish liability for copyright infringement, the plaintiff must demonstrate “(1)
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`ownership of a valid copyright, and (2) copying of constituent elements of the work that are
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`original.” Stenograph L.L.C. v. Bossard Assocs., Inc., 144 F.3d 96, 99 (D.C. Cir. 1998) (quoting
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`Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). The plaintiff is the owner
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`of a valid copyright for the Painting. Compl., Ex. B. The defendant made unauthorized copies
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`of the Painting, removed the plaintiff’s copyright notice and sold the unauthorized copies for
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`profit without the plaintiff’s knowledge or authorization. Compl. ¶¶ 2-3. These allegations,
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`coupled with the defendant’s default, establish the defendant’s liability for willfully infringing on
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`the plaintiff’s copyright in the Painting. Id. Accordingly, the court concludes that the defendant
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`is liable for copyright infringement, grants the plaintiff’s motion and enters default judgment
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`against the defendant. See Int’l Painters & Allied Trades Indus. Pension Fund v. Auxier
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`Drywall, L.L.C., 531 F. Supp. 2d 56, 57 (D.D.C. 2008) (explaining that a defendant’s failure to
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`Case 1:09-cv-00625-RMU Document 9 Filed 10/04/10 Page 5 of 10
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`respond to the summons and complaint, the entry of default, or the motion for default judgment
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`satisfies the standard for entry of default judgment) (citing Gutierrez v. Berg Contracting Inc.,
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`2000 WL 331721, at *1 (D.D.C. Mar. 20, 2000)).
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`2. The Plaintiff is Entitled to Injunctive and Monetary Relief
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`a. The Plaintiff’s Request for Injunctive Relief
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`The plaintiff requests that the court permanently enjoin the defendant, her employees and
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`agents and all persons acting in concert with her from engaging in future infringement of the
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`plaintiff’s copyright in the Painting. Pl.’s Mot. at 3-5. The plaintiff argues that such an
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`injunction is necessary because his ability to exclusively market and sell his original work is
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`being permanently and irreparably impaired by the defendant’s actions. Id. at 4-5.
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`In determining whether to grant a permanent injunction, the court “considers a modified
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`iteration of the factors it utilizes in assessing preliminary injunctions: (1) success on the merits,
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`(2) whether the plaintiffs will suffer irreparable injury absent an injunction, (3) whether,
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`balancing the hardships, there is harm to defendants or other interested parties, and (4) whether
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`the public interest favors granting the injunction.” American Civil Liberties Union v. Mineta,
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`319 F. Supp. 2d 69, 87 (D.D.C. 2004). In copyright infringement cases, a copyright holder is
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`“‘presumed to suffer irreparable harm as a matter of law when his right to the exclusive use of
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`copyrighted material is invaded.’” Health Ins. Ass’n of Am. v. Novelli, 211 F. Supp. 2d 23, 28
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`(D.D.C. 2002) (quoting Hart v. Sampley, 1992 WL 100135, at *3 (D.D.C. Feb. 4, 1992)).
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`Further, a defendant’s “continuing disregard for Plaintiff’s rights demonstrates that Defendant
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`will continue to infringe on Plaintiff’s rights, absent an injunction. This finding alone entitles
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`Plaintiff to a permanent injunction.” Lifted Research Grp., Inc. v. Behdad, Inc., 591 F. Supp. 2d
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`Case 1:09-cv-00625-RMU Document 9 Filed 10/04/10 Page 6 of 10
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`3, 8 (D.D.C. 2008) (“Behdad I”) (citing Walt Disney Co. v. Powell, 897 F.2d 565, 567 (D.C. Cir.
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`1990)).
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`As discussed in the previous section, the plaintiff has succeeded on the merits; the
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`defendant’s default establishes her liability for infringing on the plaintiff’s copyright over the
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`Painting. See supra Part III.B.1. This invasion of the plaintiff’s “right to the exclusive use of
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`[his] copyrighted material” constitutes irreparable harm. Novelli, 211 F. Supp. 2d at 28. An
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`injunction would cause no harm to the defendant or others, whereas without an injunction, the
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`defendant may continue to produce and sell unauthorized copies of the Painting. Furthermore,
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`the public interest favors protecting the plaintiff’s copyright and federal copyright law. Behdad
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`I, 591 F. Supp. 2d at 8. Accordingly, the court grants the plaintiff’s request for a permanent
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`injunction.
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`b. The Plaintiff’s Request for Monetary Damages
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`The plaintiff also requests monetary damages for the defendant’s infringement. The
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`plaintiff contends that the defendant has sold at least 300 unauthorized copies of the Painting for
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`seven to ten dollars each. Pl.’s Mot. at 6. The plaintiff argues that each infringing copy sold by
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`the defendant represents a copy that the plaintiff could have sold. Id. Because the plaintiff
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`generally sold copies of the Painting to third parties for up to twenty dollars a copy, he contends
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`that the defendant’s infringement resulted in lost revenues of $6,000 (300 copies at twenty
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`dollars per copy). Id. The plaintiff asserts that he has lost profits in the amount of $4,030,
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`representing $6,000 in lost revenue less $1,970 in costs associated with the creation and sale of
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`the Painting. Id.
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`Under the Copyright Act, a copyright owner is “entitled to recover the actual damages
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`suffered . . . as a result of the infringement, and any profits of the infringer that are attributable to
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`Case 1:09-cv-00625-RMU Document 9 Filed 10/04/10 Page 7 of 10
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`the infringement and are not taken into account in computing the actual damages.” 17 U.S.C. §
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`504(b). In calculating actual damages on a motion for default judgment, the plaintiff must prove
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`his entitlement to the amount of damages requested. Breaking the Chain Found., Inc. v. Capitol
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`Educ. Support, Inc., 589 F. Supp. 2d 25, 31 (D.D.C. 2008). In its determination of actual
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`damages, a court may draw all reasonable inferences from the plaintiff’s recollections and the
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`evidence offered. Pleitez v. Carney, 594 F. Supp. 2d 47, 48-49 (D.D.C. 2009).
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`Alternatively, the court may award statutory damages (instead of actual damages),
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`holding the infringer liable for an amount not less than $750 or more than $30,000 per work
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`infringed. 17 U.S.C. § 504(c)(1). In cases of willful infringement, the court in its discretion may
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`increase this award up to $150,000. Id. § 504(c)(2). Statutory damages are often appropriate on
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`a motion for default judgment because a defaulting party has information needed to prove actual
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`damages. Behdad I, 591 F. Supp. 2d at 8 (quoting Microsoft Corp. v. McGee, 490 F. Supp. 2d
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`874, 882 (S.D. Ohio 2007)).
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`Calculating actual damages in this case proves to be difficult due to the incomplete nature
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`of the plaintiff’s evidence. The plaintiff asserts, based on information and belief, that the
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`defendant has sold at least 300 copies of the Painting at seven to ten dollars each. Pl.’s Decl. ¶
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`11. The plaintiff has not, however, provided the court with information regarding the
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`defendant’s sales, revenues or profits from the sale of the infringing copies. See generally Pl.’s
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`Mot. Given that the plaintiff himself purchased an unauthorized copy for seven dollars, see Pl.’s
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`Decl. ¶ 9, the court cannot assume that the defendant sold all 300 unauthorized copies for ten
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`dollars each. Cf. Breaking the Chain, 589 F. Supp. 2d at 31-32 (accepting price of concert event
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`as printed on ticket in calculating the defendant’s profits from ticket sales in trademark
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`infringement case, but rejecting hearsay evidence as proof of how many tickets were sold).
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`Case 1:09-cv-00625-RMU Document 9 Filed 10/04/10 Page 8 of 10
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`Furthermore, because the defendant sold the infringing copies at a lower price (seven to ten
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`dollars) than the plaintiff would have charged (ten to twenty dollars), the court cannot assume
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`that the plaintiff would have been able to sell all 300 copies at a higher price. See Stevens Linen
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`Assocs., Inc. v. Mastercraft Corp., 656 F.2d 11, 14 (2d Cir. 1981) (refusing to grant damage
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`award based on an assumption that the plaintiff would have sold the entire amount of fabric that
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`the defendant copied and sold at a lower price). Indeed, the plaintiff has presented scant
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`evidence that the defendant actually sold 300 unauthorized copies of the Painting. See generally
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`Pl.’s Mot.; Pl.’s Decl.
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`The difficulty of computing actual damages in this case suggests that statutory damages
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`are more appropriate here. See Behdad I, 591 F. Supp. 2d at 8. Although usually awarded upon
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`the plaintiff’s request, a court may exercise its discretion to award statutory damages even if the
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`plaintiff does not specifically request such an award. See Dan Kasoff, Inc. v. Palmer Jewelry
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`Mfg. Co., 171 F. Supp. 603, 607 (S.D.N.Y. 1959) (stating that “the inadequacy of proof as to
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`both profits and damages, does show that this is a case for the exercise of a proper judicial
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`discretion in fixing statutory damages”). In determining an award of statutory damages, courts
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`look to factors including “(1) expenses saved and profits reaped by the infringing party, (2)
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`revenues lost by the copyright holder, and (3) whether the infringing party acted willfully.”
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`Lifted Research Grp., Inc. v. Behdad, 2010 WL 2662277, at *5 (D.D.C. June 30, 2010) (“Behdad
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`II”). Courts have wide discretion as to the amount of statutory damages to be awarded. Id.;
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`compare Harrison Music Corp. v. Tesfaye, 293 F. Supp. 2d 80, 84 (D.D.C. 2003) (awarding
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`$2,000 per infringement in a case involving unauthorized use of copyrighted music, when the
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`defendants knowingly failed to pay licensing fees but reaped minimal profits from the
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`infringement) with Behdad II, 2010 WL 2662277, at *6 (awarding $30,000 for the willful
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`Case 1:09-cv-00625-RMU Document 9 Filed 10/04/10 Page 9 of 10
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`infringement of copyrighted apparel and explaining that such award was reasonable and within
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`the accepted range of damages under the statute).
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`Considering the expenses saved and profits reaped by the defendant, and revenues lost by
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`the plaintiff, the court concludes that $4,000 is a reasonable and just award for the defendant’s
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`willful violation of the plaintiff’s copyright. The award includes $3,000 to compensate the
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`plaintiff for lost profits: the defendant informed the plaintiff that she possessed at least 300
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`infringing copies of the Painting, and, as per their previous arrangement, the defendant paid the
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`plaintiff ten dollars per copy ($3,000 = 300 copies at ten dollars per copy). See Pl.’s Decl. ¶ 5,
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`10. The award also includes $1,000 in consideration of the willful nature of the defendant’s
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`actions, demonstrated by her deliberate removal of the plaintiff’s copyright notice. See Harrison
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`Music Corp., 293 F. Supp. 2d at 84 (awarding statutory damages to compensate the plaintiff for
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`unpaid licensing fees as well as to account for the willfulness of the defendants’ infringement).
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`This award is commensurate with the plaintiff’s original request for actual damages, see Pl.’s
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`Mot. at 5-6, and comports with the objective of statutory damages of deterring wrongful conduct.
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`See Harrison Music Corp., 293 F. Supp. 2d at 83 (stating that “[s]tatutory damages are not
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`designed to be merely compensatory or restitutionary, but are also meant to discourage wrongful
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`conduct”). Accordingly, the court determines that the defendant is liable for $4,000 in statutory
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`damages.
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`IV. CONCLUSION
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`For the foregoing reasons, the court grants the plaintiff’s motion for entry of default
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`judgment. An Order consistent with this Memorandum Opinion is separately and
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`Case 1:09-cv-00625-RMU Document 9 Filed 10/04/10 Page 10 of 10
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`contemporaneously issued this 4th day of October, 2010.
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` RICARDO M. URBINA
`United States District Judge
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