2:06-cv-12624-SFC-PJK Doc # 130 Filed 10/05/07 Pg 1 of 18 Pg ID 1882
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`SAM TANG,
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`Plaintiff,
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`v.
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`HEKMAT HANNA PUTRUSS, et al.,
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`Case No. 06-12624
`Hon. Sean F. Cox
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`Defendants.
`______________________________________________________________________________
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`OPINION AND ORDER
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`This matter is before the Court on the parties’ Cross-Motions for summary judgment on
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`the Copyright Claim. The parties have briefed the issues. Pursuant to E.D.Mich. LR 7.1, the
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`court declines to hold a hearing. For the following reasons, the Court:
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`(1)
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`GRANTS in part, and DENIES in part, Plaintiff’s Motion for partial summary judgment,
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`the Motion is denied with respect to (a) finding of liability and (b) a finding that each
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`photograph constitutes a separate “work,” but granted to the extent that (a) Defendant
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`Maria’s Collection did not have an implied license to use the photographs on the CDs
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`obtained on August 10, 2005, (b) Defendants are not joint authors of the photographs; (c)
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`Defendants may be liable for statutory damages provided Plaintiff can prove the requisite
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`date of commencement;
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`(2)
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`DENIES Defendant Putruss and Maria’s Collection’s Motion for summary judgment as
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`to Count I for Copyright Infringement;
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`(3)
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`GRANTS in part, and DENIES in part, Defendant Putruss and Maria’s Collection’s
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`2:06-cv-12624-SFC-PJK Doc # 130 Filed 10/05/07 Pg 2 of 18 Pg ID 1883
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`Motion for summary judgment as to damages, the Motion is denied to the extent it
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`requests a ruling that “[a]ny alleged infringement by either Defendants...is not entitled to
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`any award of statutory damages,” the Motion is granted with respect to a finding that the
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`photographs constitute one “work,” the court declines to rule on the issue of willfulness at
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`this time; and
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`(4)
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`DENIES Defendant Pageantry’s Motion for summary judgment.
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`I. BACKGROUND
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`This action arises out of alleged copyright infringement. Plaintiff, Sam Tang, is a
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`photographer doing business as Tang Productions. Defendant Hekmat Putruss is the principal of
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`Maria’s Collection, Inc., which sells designer dresses and clothing throughout the United States.
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`Defendant Pageantry publishes a trade magazine circulated in Michigan.
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`On August 4, 2005, Plaintiff and Defendant Putruss met to discuss a photo shoot for
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`Defendant Maria’s Collection’s new line of dresses. According to Plaintiff, each photo used by
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`Defendant would show a credit to Plaintiff as the photographer. Plaintiff claims that as part of
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`the agreement, Defendants would pay a deposit to Plaintiff up front, with the remaining balance
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`due when the images were delivered. Plaintiff alleges that after the balance was paid, he was
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`going to issue a license for Defendants to publicly display his images. The parties allegedly
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`agreed that Plaintiff would be paid $4000.00. Plaintiff was given a deposit of $2000.00
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`The photo shoot occurred on August 7, 2005. During the photo shoot, more images and
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`dresses were used than originally anticipated. According to Plaintiff, the agreement provided for
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`additional fees for the additional hours and dresses. Plaintiff told Defendant he owed him
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`$5050.00.
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`2:06-cv-12624-SFC-PJK Doc # 130 Filed 10/05/07 Pg 3 of 18 Pg ID 1884
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`On August 10, 2005, Plaintiff sent his associates Norman Estigoy and Art Lokar to pick
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`up the remaining balance and give the images to Defendants. According to Plaintiff, Defendant
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`Putruss refused to pay and forcibly took the images which were stored on DVD’s. Defendant
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`Putruss was charged with assault and battery against Lokar. He pled no contest.
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`Prior to filing a civil action, Plaintiff registered the photo images with the U.S. Copyright
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`office, the registration became effective on August 18, 2005. Plaintiff asserts that Defendants
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`publicly displayed his images, without credit to Plaintiff as the photographer. Allegedly, Plaintiff
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`informed Defendant Pageantry that the images were not licensed to Defendant and could not be
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`displayed. Nonetheless, Defendant Pageantry reproduced one of the copyrighted images in its
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`Winter 2005 issue.
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`On June 14, 2006 Plaintiff filed a Complaint. A First Amended Complaint was filed on
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`September 29, 2006, alleging copyright infringement. Defendants Putruss and Maria’s
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`Collection filed an Answer on October 19, 2006. An Amended Answer was filed March 19,
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`2007. Defendants Putruss and Maria’s collection allege several counter claims seeking various
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`forms of relief: (1) declaratory judgment that the copyright registration is invalid; (2) declaratory
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`judgment that Defendant’s are a joint owner of any copyrights of the photo images if valid; (3)
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`seeking an accounting of any profits derived from the copyrights; (4) breach of contract and duty
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`of good faith and fair dealing; (5) tortious interference with a business relationship (Pageantry);
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`(6) tortious interference with a business relationship (John Kelvin); (7) violation of the Michigan
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`Consumer Protection Act; (8) false advertising under the Lanham Act; (9) false advertising in
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`violation of Michigan law; (10) civil extortion; (11) violation of 18 U.S.C. § 1962; and (12)
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`violation of MCL § 750.159.
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`2:06-cv-12624-SFC-PJK Doc # 130 Filed 10/05/07 Pg 4 of 18 Pg ID 1885
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`Several motions seeking summary judgment have been filed in this case. On June 7,
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`2007, Plaintiff filed a Motion for partial summary judgment on his claim of copyright
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`infringement against Defendants. Also on June 7, 2007, Defendants Putruss and Maria’s
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`Collection filed two Motions for summary judgment regarding Plaintiff’s copyright infringement
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`claim; and if that claim is successful, regarding damages on that claim. Defendant Pageantry also
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`filed a Motion for summary judgment on June 7, 2007.
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`II. STANDARD OF REVIEW
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`Under Fed. R. Civ. P 56(c), summary judgment may be granted “if the pleadings,
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`depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
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`any, show that there is no genuine issue as to any material fact and that the moving party is
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`entitled to judgment as a matter of law.” Copeland v. Machulis, 57 F.3d 476, 478 (6 Cir. 1995).
`th
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`A fact is “material” and precludes a grant of summary judgment if “proof of that fact would have
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`[the] effect of establishing or refuting one of the essential elements of the cause of action or
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`defense asserted by the parties, and would necessarily affect application of appropriate
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`principle[s] of law to the rights and obligations of the parties.” Kendall v. Hoover Co., 751 F.2d
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`171, 174 (6 Cir. 1984). The court must view the evidence in the light most favorable to the
`th
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`nonmoving party and it must also draw all reasonable inferences in the nonmoving party’s favor.
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`Cox v. Kentucky Dept. of Transp., 53 F.3d 146, 150 (6 Cir. 1995).
`th
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`III. ANALYSIS
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`Although there are four separate Motions at issue, the resolution of several issues are
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`consistent in each of the Motions. Therefore, those issues will be addressed in turn.
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`A.
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`Is Defendant Putruss a Joint Author of the Photo Images?
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`2:06-cv-12624-SFC-PJK Doc # 130 Filed 10/05/07 Pg 5 of 18 Pg ID 1886
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`Defendants argue that Putruss is a joint author of the photo images copyrighted by
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`Plaintiff, based on Putruss’ significant contributions to the photographs. “Joint authorship
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`entitles the co-authors to equal undivided interests in the whole work - in other words, each joint
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`author has the right to use or to license the work as he or she wishes, subject only to the
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`obligation to account to the other joint owner any profits that are made.” Thomson v. Larson,
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`147 F.3d 195, 199 (2 Cir. 1998).
`nd
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`Under copyright law, a “joint work” is “a work prepared by two or more authors with the
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`intention that their contributions be merged into inseparable or interdependent parts of a unitary
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`whole.” 17 U.S.C. § 101. “As a general rule, the author is the party who actually creates the
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`work, that is, the person who translates an idea into a fixed tangible expression entitled to
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`copyright protection.” Community for Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989).
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`The parties do not dispute that Defendant Putruss was involved with the photo shoot.
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`The parties agree that Putruss selected the models and the gowns and accessories that would be
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`worn by each model during the photo shoot. [Plf. Mot., p. 3]. Further, Putruss also requested
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`certain poses and made suggestions. Id. However, the parties appear to disagree on the extent of
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`Putruss’ contributions.
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`Nonetheless, Plaintiff argues that Putruss cannot be a joint author for two reasons: (1)
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`there is no objective manifestation that both parties intended to be joint authors; and (2) Putruss’
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`contributions preclude a finding of joint authorship because they are not independently
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`copyrightable. Defendants contend that there is no requirement that the contribution be
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`“independently copyrightable” in order to find joint authorship.
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`Before the Court can analyze the argument set forth by Plaintiff, it must first determine
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`2:06-cv-12624-SFC-PJK Doc # 130 Filed 10/05/07 Pg 6 of 18 Pg ID 1887
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`that Plaintiff advances the proper test. There are two competing test for determining whether a
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`contribution rises to the level of joint authorship. One test is the “de minimis” test, set forth by
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`Professor Nimmer, and the other is the “copyrightable subject matter” test, set forth by Professor
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`Goldstein. Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1069 (7 Cir. 1994). The
`th
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`fundamental difference between the two tests is that the de minimis test requires only the
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`combined product of joint efforts must be copyrightable; the copyrightable subject matter test
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`requires that each author’s contribution be independently copyrightable. Id. The Seventh Circuit
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`evaluated both tests in Erickson, and determined that the copyrightable subject matter test better
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`promoted the primary objective of the Copyright Act:
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`The copyrightability test advances creativity in science and are by allowing for the
`unhindered exchange of ideas, and protects authorship rights in a consistent and
`predictable manner. It excludes contributions such as ideas which are not
`protected under the Copyright Act. This test also enables parties to predict
`whether their contributions to a work will entitle them to copyright protection as a
`joint author. Compared to the uncertain exercise of divining whether a
`contribution is more than de minimis, reliance on the copyrightability of an
`author’s proposed contribution yields relatively certain answers. The
`copyrightability standard allows contributors to avoid post-contribution disputes
`concerning authorship, and to protect themselves by contract if it appears that they
`would not enjoy the benefits accorded to authors of joint works under the Act.
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`Erickson, 13 F.3d at 1071 (internal citations omitted).
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`The Sixth Circuit has not ruled on which test is to be applied in this Circuit. However,
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`the Erickson court pointed out that the copyrightable subject matter test has been adopted, in
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`some form, by a majority of the courts that have considered the issue. Id. at 1070-1071, n.8
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`(citing cases). Further, two district courts within the Sixth Circuit have elected to follow the
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`copyrightable subject matter test. See Balkin v. Wilson, 863 F.Supp. 523, 528 (W.D.Mich.
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`1994)(citing Erickson, supra); and Perry v. Herd, 2006 WL 335522 *17 (E.D.Tenn. 2006).
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`Accordingly, this Court will apply the copyrightable subject matter test as set forth in
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`Erickson. In order for Defendants to assert the “joint authorship” defense to Plaintiff’s claim for
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`copyright infringement, Defendants must establish: (1) that the parties intended to be joint
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`authors at the time the photo images were taken; and (2) Defendants’ contributions were
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`independently copyrightable. Erickson, 13 F.3d at 1071.
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`Did the parties intend to be joint authors at the time the photo images were
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`taken?
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`The parties dispute whether they intended to be joint authors. In Thomson, supra, the
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`Second Circuit articulated the inquiry for determining whether there is objective evidence of an
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`intent to be joint authors. The court noted that the requirement of intent is designed to “strike a
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`balance between ensuring that true collaborators in the creative process are accorded the
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`perquisites of co-authorship, while at the same time, guarding against the risk that a sole author is
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`denied exclusive authorship status simply because another person renders some form of
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`assistance.” Thomson, 147 F.3d at 200 (quoting Childress v. Taylor, 945 F.2d 500, 507-508 (2nd
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`Cir. 1991). In Thomson, to determine whether there was an intent to be co-authors, the court
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`considered: (1) how the parties regarded themselves in relation to the work; (2) the contributor’s
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`decisionmaking authority; (3) agreements with third parties; and (4) other additional pertinent
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`evidence. The court noted “contribution even of significant language to a work does not
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`automatically suffice to confer co-author status on the contributor...a specific finding of mutual
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`intent remains necessary.” Thomson, 147 F.3d at 202 (citation omitted).
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`There are two helpful cases regarding copyright co-authorship in the context of
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`photographers. First, in SHL Imaging, Inc. v. Artisan House, Inc., 117 F.Supp.2d 301 (S.D. N.Y.
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`2:06-cv-12624-SFC-PJK Doc # 130 Filed 10/05/07 Pg 8 of 18 Pg ID 1889
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`2000), the court found that the defendant frame manufacturer was not a joint author of photos
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`taken by a photographer hired to take photos of framed mirrors. In SHL Imaging, prior to taking
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`the photographs, the plaintiff photographer solely selected the camera, lenses, film type, paper
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`type, diffusers, reflectors and lighting equipment. The plaintiff arranged both the lighting and the
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`staging of the frames. The defendant asserted that he instructed the plaintiff on how he wanted
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`the photographs taken, including the positioning and angle and appropriate lighting, but provided
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`no specifics. The court held that the defendant’s selection of the subject matter and right to
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`control the developed photographs were not indicative of an intent to be joint authors. Noting
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`that the defendant did not offer evidence that the parties intended to share credit for the
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`photographs; jointly register the photographs; or affix a copyright notice on the work, the court
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`found that the defendant was not a joint author.
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`In Brod v. General Publishing Group, Inc., 32 Fed.Appx. 231 (9 Cir. 2001), the court
`th
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`found that the parties were joint authors. The plaintiff photographer was asked by the defendant
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`to take photographs of vintage televisions for a book he planned to publish. Based on the extent
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`of the defendant’s artistic control, the court found he was a co-author. The defendant came up
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`with the idea, procured the televisions, arranged the composition for each shot, directed the
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`plaintiff to make changes to the camera angles, and enhanced the images. Further, before the
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`plaintiff triggered the shutter, the defendant “viewed a preliminary Polaroid test photograph of
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`each image and made suggestions regarding any changes he thought appropriate.” Id. at 233.
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`The defendant “gave final approval of both positioning of the subject matter and the camera
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`angle before [the plaintiff] triggered the shutter in each photograph.” Id. at 235. The court found
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`that under those circumstances, the defendant exercised sufficient artistic control to be
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`2:06-cv-12624-SFC-PJK Doc # 130 Filed 10/05/07 Pg 9 of 18 Pg ID 1890
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`considered a co-author. Id. at 235.
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`Additionally, the Brod court found that there was an objective manifestation of the intent
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`to be co-authors because the plaintiff deferred to the defendant, indicated the pictures were for a
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`“t.v. book,” and listed the completion date in the copyright registration as the date the book was
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`completed, rather than when the photographs were taken.
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`In this case, Plaintiff’s certificate of registration indicating he is the sole author is prima
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`facie evidence of sole authorship, Defendants bear the burden of overcoming this statutory
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`presumption. SHL Imaging, 117 F.Supp.2d at 314 (citing 17 U.S.C. § 410(c)).
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`With respect to the level of artistic control exercised by Defendant, the circumstances of
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`this case are closer to the SHL Imaging case than the Brod case. The parties do not dispute that
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`Defendant offered suggestions, and that Plaintiff incorporated Defendant’s suggestions. But,
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`Defendant does not appear to have exercised a high degree of control in the actual taking of the
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`photographs, like that of the defendant in Brod. The deposition testimony of the models
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`provided by Defendants indicates that Defendant Putruss, and his two sons, were responsible for
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`dressing the models, choosing their accessories, and directing the hair and makeup stylists.
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`[Exhibits C and D]. However, all of this pertains to the subject matter of the photos, not the
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`taking of the photos themselves. “Mere selection of the subject matter to be photographed does
`1
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`Although Defendants cite Brod for the proposition that “it has long been established that
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`copyrightable expression includes selecting and arranging the subject matter, deciding on the
`composition and camera angles of the photograph, and determining the lighting as well as when
`to take the photograph,” this statement refers to determining whether something is a
`copyrightable contribution, not whether there was an intent to be a joint author. Brod, 32
`Fed.Appx. at 234. Moreover, while Putruss and his sons selected the subject matter, and
`requested some photos from a low angle; it is undisputed that Plaintiff decided when to take the
`photographs and the lighting.
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`2:06-cv-12624-SFC-PJK Doc # 130 Filed 10/05/07 Pg 10 of 18 Pg ID 1891
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`not create joint authorship.” SHL Imaging, 117 F.Supp.2d at 315. It is undisputed that Plaintiff
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`is the only person who took the photographs, supplied all of the photographic equipment, and
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`arranged the lighting. Defendants fail to demonstrate that they had sufficient artistic control over
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`the photo shoot to entitle them to be considered a joint author on the resulting photographs.
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`Defendants also fail to demonstrate objective indicia of an intent to be joint authors. The
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`contract between the parties, which is essentially just an invoice, does not indicate who is to have
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`authorship over the photo images. [Defs Putruss Mot. Exhibit A]. However, the contract makes
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`it clear that the CD or DVD’s created from the shoot will be delivered when payment is received.
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`Id. The fact that Defendants were required to pay before they could receive the images, and
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`conversely that Plaintiff could withhold the images, indicates that the parties did not intend to be
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`joint authors. In Defendant Putruss’ deposition he stated that it was his understanding that when
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`he paid the money, he could use the photos. [Defs Resp. Plf Mot. Exhibit A, p.43]. If the parties
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`intended that the rights to the photographs would be jointly held, Plaintiff would not be able to
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`withhold them pending payment. Further, Plaintiff obtained a copyright registration, in his name
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`only, shortly after the photo shoot. Defendant Putruss never made any attempts to copyright the
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`photographs. Plaintiff also alleges that he contacted third parties, i.e. Defendant Pageantry and
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`John Kelvin, to inform them that Defendant was not authorized to use the photos. This does not
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`indicate an understanding that the works were joint.
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`Because Defendant does not establish artistic control or demonstrate an objective intent to
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`be joint owners, the court does not need to reach the question of whether Defendant’s
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`contributions are independently copyrightable.
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`Accordingly, Defendant Putruss fails to establish that he is a joint owner of the copyright
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`2:06-cv-12624-SFC-PJK Doc # 130 Filed 10/05/07 Pg 11 of 18 Pg ID 1892
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`in the photo images.
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`B.
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`Does Defendant Putruss Have an Implied License to Use the Photo Images?
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`In the alternative, Defendants argue that Putruss has an implied license to use the photo
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`images because Plaintiff delivered the initial CD containing photographs, and Defendants
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`obtained the remaining two CDs.
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`An implied license will only be found in narrow circumstances where “one party created
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`a work at the other’s request and handed it over, intending that the other copy and distribute it.”
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`SHL Imaging, 117 F.Supp.2d at 317 (citing SmithKline Beecham Consumer Healthcare, L.P. v.
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`Watson Pharmaceuticals, Inc., 211 F.3d 21, 25 (2 Cir. 2000)). There is no dispute that Plaintiff
`nd
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`created the photo images at Defendants’ request, and the intent was for Defendants to copy and
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`distribute them. However, with the exception of the first CD that contained approximately one
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`third of the photo images, Plaintiff did not “hand over” the remaining two CDs. Defendant
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`Putruss forcibly took the CDs and was subsequently charged with assault. Additionally,
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`Defendant only paid $2000 of the initial $4000 contract price. Accordingly, the court will not
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`imply a license where the work was involuntarily taken from the author, with respect to the CDs
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`taken from Plaintiff. But, there is an implied license with respect to the images on the first CD
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`given to Putruss at the photo shoot. Those images were voluntarily given to Defendants and at
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`least a portion of the contract price had been paid.
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`Therefore, Defendants are entitled to a finding of summary judgment on Plaintiff’s claim
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`of copyright infringement with respect to the photo images on the first CD, but not on the two
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`Plaintiff asserts that $5,050.00 was outstanding at the completion of the photo shoot,
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`rather than $2000, due to additional time and photos.
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`2:06-cv-12624-SFC-PJK Doc # 130 Filed 10/05/07 Pg 12 of 18 Pg ID 1893
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`CDs taken by Putruss. The parties do not indicate which photo images were involved in the
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`alleged copyright infringement.
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`C.
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`Is Defendant Pageantry an Innocent Infringer?
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`Assuming that Defendants did infringe by using the photo images forcibly taken from
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`Plaintiff, Pageantry claims it is an innocent infringer pursuant to 17 U.S.C. § 504(c)(2):
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`In a case where the copyright owner sustains the burden of proving, and the court
`finds, that infringement was committed willfully, the court in its discretion may
`increase the award of statutory damages to a sum of not more than $150,000. In a
`case where the infringer sustains the burden of proving, and the court finds, that
`such infringer was not aware and had no reason to believe that his or her acts
`constituted an infringement of copyright, the court in its discretion may reduce the
`award of statutory damages to a sum of not less than $200. * * *
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`However, if the notice of copyright appears on the copies, then the “innocent infringer” defense
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`is inapplicable. 17 U.S.C. § 401(d).
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`The parties dispute whether Plaintiff informed Carl Dunn, the President of Pageantry, that
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`Defendants did not have authorization to use the copyrighted images. Dunn testified during
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`deposition that Tang called him and all he said was “don’t run anything for Harry.” [Pag. Mot.
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`Exhibit D, p.3]. Dunn claims there was no indication, either from Plaintiff or from a visible
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`copyright notice, that there was a copyright problem with the photographs contained in the
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`advertisements sent from Maria’s Collection to Pageantry for publication. Id. at 5.
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`Plaintiff testified during his deposition that he told Dunn that Putruss stole the DVDs and
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`“there could be a potential problem with copyright infringement of the images.” Pag. Mot.
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`Exhibit F, p.185].
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`Because there are disputed facts regarding whether Pageantry, through Plaintiff’s
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`conversation with Dunn, had reason to know of the alleged copyright infringement, the Court
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`2:06-cv-12624-SFC-PJK Doc # 130 Filed 10/05/07 Pg 13 of 18 Pg ID 1894
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`cannot grant either party summary judgment on this issue.
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`D.
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`Damages
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`The Court cannot assess damages against Defendants because it is unclear what photo
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`images were used, and because Defendants have a remaining claim asserting invalidity of the
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`copyright. Nonetheless, because the issues raised by the parties with respect to damages are not
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`likely to resolve, and may affect settlement, the Court will rule.
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`1.
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`Are Plaintiff’s photographs one “work” for purposes of calculating
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`damages?
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`Copyright owners are entitled to damages for each infringement with respect to any one
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`work. 17 U.S.C. § 504(c)(1). However, the Copyright Act does not define what constitutes a
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`“work.” Thus, the parties dispute whether Plaintiff’s photographs as a whole constitute one
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`work, or whether each individual photograph constitutes a separate work, entitling Plaintiff to
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`several awards of statutory damages.
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`It is undisputed that Plaintiff’s photographs are all registered on a single copyright. [Plf
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`Response, Exhibit 6]. Plaintiff identified the title of the work as “Putros Couture.” Id. The
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`photographs are not individually listed. Id.
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`The Sixth Circuit has not indicated what analysis courts are to use in determining whether
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`a group of photographs constitute a single work. However, the issue has been dealt with in other
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`circuits. In Walt Disney Company v. Powell, 897 F.2d 565, 569 (D.C.Cir. 1990), the court held
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`that separate copyrights do not constitute distinct works unless they can “live their own copyright
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`life.” Under that analysis, where separate copyrights have no economic value, regardless of their
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`artistic value, they must be considered part of a single work. Id. In Walt Disney, the court found
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`2:06-cv-12624-SFC-PJK Doc # 130 Filed 10/05/07 Pg 14 of 18 Pg ID 1895
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`that the defendant, who was selling six shirts depicting Minnie and Mickey Mouse in different
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`poses, only infringed two of Disney’s works because each shirt was essentially the same and only
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`the poses varied:
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`While Mickey and Minnie are certainly distinct, viable works with separate
`economic value and copyright lives of their own, we cannot say the same is true
`for all six of the Disney copyrights of Mickey and Minnie in various poses which
`the district court found to be infringed in this case. Mickey is still Mickey
`whether he is smiling or frowning, running or walking, waving his left hand or his
`right. Thus, we find that Powell’s mouse-face shirts infringed only two of
`Disney’s works.
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`Walt Disney, 897 F.2d at 570.
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`In Playboy Enterprises, Inc. v. Sanfilippo, 1998 WL 207856 (C.D.Cal. 1998), the court
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`found that a group of photographs were separate works for purposes of calculating damages. In
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`Playboy, the infringer copied thousands of copyrighted images from Playboy, which he offered
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`for sale via a website. The court found that the plaintiff was entitled to statutory damages for
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`each image:
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`...the Court finds that each one of these images has an ‘independent economic
`value’ and is viable on its own. As plaintiff’s counsel represented, although each
`of these images may have appeared in a singular issue of one of plaintiff’s
`copyrighted publications, these images are subject ot re-use and redistribution in
`accordance with various licensing arrangements. Furthermore, each image
`represents a singular and copyrightable effort concerning a particular model,
`photographer, and location. The fact that many of these images appeared together
`should not detract from the protection afforded to each individual effort.
`Furthermore, defendant marketed each one of the images separately.
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`Playboy, 1998 WL 207856, *1355-1356. This is in contrast with the holding in Coogan v. Avnet,
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`Inc., 2005 WL 2789311 (D.Ariz. 2005), where, citing to the Playboy case, the court found that a
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`group of photos made up a single work for purposes of calculating damages. In Coogan, the
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`plaintiff was a professional photographer hired to take photos of the CEO, Roy Vallee, of the
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`defendant company. The license only allowed the defendant to use a single photograph one time.
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`The defendant used more than one photograph for more than one occasion. The court found that
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`the photographs constituted one work:
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`Unlike the photographs at issue in Playboy, the Vallee photographs were the
`subject of a single license agreement. Unlike the photographs at issue in Playboy,
`the Vallee photographs involved a single subject, a single photographer and a
`single location. Unlike the photographs at issue in Playboy, there is no evidence
`in the record that Plaintiff marketed the images to the public separately. Rather
`the photographs were taken at a single session, by a single photographer, for a
`single purpose.
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`Coogan, 2005 WL 2789311, *6.
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`In this case, the photographs taken by Plaintiff constitute a single work for purposes of
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`calculating damages. Regardless of any artistic value, the photographs of models wearing
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`Defendants’ dress line is of no economic value to Plaintiff. Further, similar to the photographs in
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`Coogan, the photographs were taken at a single session, by a single photographer, for a single
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`purpose. The only purpose for the photographs is to advertise the “Putros Couture” clothing line.
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`Accordingly, if Plaintiff establishes liability for copyright infringement, he is only entitled
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`to collect one award of statutory damages for the photographs as a whole, rather than for each
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`individual photograph.
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`2.
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`Is Plaintiff entitled to seek statutory damages?
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`Defendants argue that Plaintiff cannot seek statutory damages under 17 U.S.C. § 504(c),
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`because the alleged infringement occurred prior to the registration date of the copyright. Section
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`504(c) provides:
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`(c) Statutory Damages
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`(1) Except as provided by clause (2) of this subsection, the copyright owner may
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`elect, at any time before final judgment is rendered, to recover, instead of actual
`damages and profits, an award of statutory damages for all infringements involved
`in the action, with respect to any one work, for which any one infringer is liable
`individually, or for which any two or more infringers are liable jointly and
`severally, in a sum of not less than $750 or more than $30,000 as the court
`considers just. For the purposes of this subsection, all the parts of a compilation
`or derivative work constitute one work.
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`(2) In a case where the copyright owner sustains the burden of proving, and the
`court finds, that infringement was committed willfully, the court in its discretion
`may increase the award of statutory damages to a sum of not more than $150,000.
`In a case where the infringer sustains the burden of proving, and the court finds,
`that such infringer was not aware and had no reason to believe that his or her acts
`constituted an infringement of copyright, the court in its discretion may reduce the
`award of statutory damages to a sum of not less than $200. * * *
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`17 U.S.C. § 412 provides:
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`In any action under this title, other than an action brought for violation of the
`rights of the author under section 106A(a), an action for infringement of the
`copyright of a work that has been preregistered under section 408(f) before the
`commencement of the infringement and that has an effective date of registration
`not later than the earlier of 3 months after the first publication of the work or 1
`month after the copyright owner has learned of the infringement, or an action
`instituted under section 411(b), no award of statutory damages or of attorney’s
`fees, as provided by sections 504 and 505, shall be made for -
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`(1) any infringement of copyright in an unpublished work commenced before the
`effective date of its registration; or
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`(2) any infringement of copyright commenced after first publication of the work
`and before the effective date of its registration, unless such registration is made
`within three months after the first publication of the work.
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`Defendants contend that the infringing commenced prior to an August 17, 2005 trade
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`show, and thus, Plaintiff cannot seek statutory damages because the registration is dated August
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`18, 2005. To the extent that Plaintiff can establish separate infringements commencing after
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`August 18, 2005, and/or infringements for which both Defendants are jointly liable after Aug