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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`PSYCHOPATHIC RECORDS, INC. and
`CARNIVAL TRADE, INC.,
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`Case No. 08-cv-13407
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`Plaintiffs,
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`HONORABLE STEPHEN J. MURPHY, III
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`v.
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`JEFFERY S. ANDERSON,
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`Defendant.
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`OPINION ORDER GRANTING PLAINTIFFS’ MOTION FOR
`DEFAULT JUDGMENT (document no. 12), DENYING AS MOOT
`PLAINTIFFS’ MOTION FOR AN ORDER TO SHOW CAUSE (document
`no. 15) AND DEFENDANT’S MOTION FOR REVIEW OF COPYRIGHT (document
` no. 19), AND SETTING A DISCOVERY DEADLINE ON THE ISSUE OF DAMAGES
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`One of the plaintiffs in this suit, Carnival Trade, Inc. (“Carnival”), is the owner of U.S.
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`Copyright VA 1-267-132. This copyright, known as the “Hatchetman” design, is a logo
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`associated with the hip hop duo Insane Clown Posse. The “Hatchetman” figure is a stylized
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`silhouette of a running man with spiky hair and a goatee, who is holding what appears to
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`be a meat cleaver. Carnival sells various items of clothing and other goods bearing the
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`Hatchetman logo.
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`The defendant, Jeffery Anderson, holds six copyrights, numbered VAu720-359,
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`VAu729-539, VAu731-213, VAu738-532, VAu750-583, and VAu753-629. Each of these
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`copyrighted figures bears a striking resemblance to Carnival’s Hatchetman. In this suit,
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`Carnival claims (1) that its Hatchetman copyrights predates any of Anderson’s copyrights,
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`(2) that Anderson’s copyrights are intentional copies of its Hatchment figure, and are
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`“derivative works” within the meaning of 17 U.S.C. sec. 101, (3) that Anderson filed and
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`received these copyrights without its approval, and (4) that Anderson’s creation and
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`2:08-cv-13407-SJM-MKM Doc # 21 Filed 08/24/09 Pg 2 of 7 Pg ID 254
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`marketing of these figures, as well as his sale of goods bearing them, infringes upon its
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`rights under the Hatchetman copyright.
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`Carnival also alleges that Anderson has asserted that the situation is just the opposite,
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`and that the Hatchetman copyright infringes upon his own rights. Accordingly, Anderson
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`has contacted the firm that hosts Carnival’s Internet site, from which it sells its Hatchetman
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`merchandise, and demanded that the site be disabled. Carnival alleges that this situation,
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`in which Anderson’s putative copyrights and goods compete with its own, is causing it
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`continuing and irreparable harm, and accordingly requests various types of declaratory and
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`injunctive relief as against Anderson.
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`No attorney has filed an appearance in this Court on Anderson’s behalf, and he has
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`not filed an answer to the complaint. He has, however, submitted four letters to the Court,
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`in which he repeatedly states that he will obtain counsel as soon as he is able to obtain
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`funds. Anderson has also filed a “motion for review of copyright.” This motion, filed on
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`January 22, 2009, is Anderson’s most recent submission to this Court. The Clerk of Court
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`entered a default as to Anderson on October 14, 2008. On October 23, plaintiffs moved
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`for a default judgment, and on December 11, 2008, they moved for an order to show cause
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`why the default judgment should not be granted. Anderson has not responded to either
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`motion.
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`On December 15, 2008, Anderson did send a letter to the Court requesting that an
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`attorney be appointed to represent him. The Court is not inclined to grant such a request
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`in an essentially commercial dispute like this one. This is especially the case here, where
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`Anderson appears to have struck the first blow by attempting to interfere with Carnival’s
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`online merchandise sales, assumed an unduly aggressive tone in correspondence with
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`Carnival’s counsel, see document no. 1-7, and then failed to properly respond to this
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`2:08-cv-13407-SJM-MKM Doc # 21 Filed 08/24/09 Pg 3 of 7 Pg ID 255
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`lawsuit for over three months after being served, and more than two months after being
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`declared in default.
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`Pursuant to Federal Rule of Civil Procedure 55, in cases where a defendant is in
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`default but the plaintiff’s claim is not for a sum certain, a default judgment can be entered
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`only on a plaintiff’s application to the Court. In order to enter judgment, the Court must then
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`ascertain what kind and amount of relief is appropriate. As plaintiffs’ motion for a default
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`judgment is currently before the Court, such an inquiry is necessary here.
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`In their unopposed motion for default judgment, the plaintiffs seek several types of
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`relief. First, plaintiffs request a declaratory judgment that Anderson’s six putative
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`copyrights are invalid, and that he lacks any valid rights in their subject matter. As the
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`holder of the Hatchetman copyright, Carnival has the exclusive rights under 17 U.S.C. sec.
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`106 to prepare or authorize derivative works. Furthermore, pursuant to 17 U.S.C. sec.
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`103(a), “protection for a work employing preexisting material in which copyright subsists
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`does not extend to any part of the work in which such material has been used unlawfully.”
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`As it does appear that the subject matter of each of Anderson’s putative copyrights is a
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`derivative work of the Hatchetman copyright, the Court agrees that he has no copyright
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`protection or other rights in any of them, and will enter the requested declaratory judgment.
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`Second, plaintiffs ask the Court to enjoin Anderson from making any further
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`representations or suggestions to any third party that he has rights in the subject matter of
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`his putative copyrights. Plaintiffs have adduced correspondence from the Web hosting
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`service evidencing Anderson’s attempts to halt the sale of Hatchetman goods. Document
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`no. 1-6. 17 U.S.C. sec. 502(a) authorizes this Court to grant such injunctions as it deems
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`“reasonable to prevent or restrain infringement of a copyright.” The Court finds the
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`injunction requested by the plaintiffs here to be a reasonable one, and will enter it.
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`Third, plaintiffs request an injunction prohibiting Anderson or anyone associated with
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`him from in any way using or exploiting the Hatchetman design, or any derivative work or
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`reproduction, or holding themselves out in any way as being associated with the plaintiffs.
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`Although the Court finds some of plaintiffs’ proposed injunctive language to be somewhat
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`overbroad, it nonetheless also deems this type of injunction to be reasonable, and will enter
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`it.
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`Fourth, plaintiffs request that Anderson be ordered to produce for impoundment and
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`destruction all infringing goods and other materials bearing the Hatchetman design, or a
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`derivative or imitation design. The additionally request that the Court order the United
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`States Marshal to seize such goods in order to prevent their destruction or movement out
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`of this District. 17 U.S.C. sec. 503(b) authorizes this Court to order the destruction of “all
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`copies . . . found to have been made or used in violation fo the copyright owner’s exclusive
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`rights.” The Court agrees that destruction of the materials is an appropriate remedy in this
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`case, but will give the defendant the opportunity to produce the offending goods before
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`ordering their seizure by the Marshal.
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`Fifth, plaintiffs ask that the Court order Anderson to file, within 30 days of the entry of
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`the injunction, a report setting forth his compliance. It is the Court’s preference not to
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`engage in such detailed supervision of the execution of its judgments. Should plaintiffs be
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`dissatisfied with Anderson’s compliance, they will be free to move for contempt sanctions
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`against him. In the Court’s view, this traditional remedy will be adequate to ensure his
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`cooperation.
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`Sixth, plaintiffs request an accounting of the profits Anderson earned from his acts of
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`infringement, as well as either actual damages in an unspecified amount or statutory
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`damages pursuant to 17 U.S.C. sec. 504, at the plaintiffs’ option. The Court is in
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`possession of little or no evidence as to either any ill-gotten profits obtained by Anderson
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`or damages suffered by plaintiffs in this episode. Accordingly, the Court will permit the
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`parties to engage in a relatively brief period of discovery on the question of damages. At
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`the end of this period, the plaintiffs will be required to elect between actual and statutory
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`damages, as permitted by 17 U.S.C. sec. 504, and to explain whether an accounting is an
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`appropriate additional remedy, and if so why.
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`Seventh and finally, plaintiffs assert a claim for attorneys’ fees under 17 U.S.C. sec.
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`505, which grants the Court discretion to make such an award in copyright-infringement
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`cases. They also seek treble damages under 15 U.S.C. sec. 1117, and attorneys’ fees
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`under the same section, which permits such an award “in exceptional cases.” In light of the
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`defendant’s apparent inability to pay even for his own lawyer, the Court is not inclined to
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`award attorneys’ fees or multiple damages in this case, but regards this decision as being
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`better made once the remainder of plaintiffs’ claimed damages are clarified. When the
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`plaintiffs file the election described above, they may also submit further briefing and
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`evidence as to the legal and factual propriety of an award of fees or multiple damages.
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`WHEREFORE, it is hereby ORDERED that plaintiffs’ motion for default judgment is
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`GRANTED. Plaintiff’s motion for an order to show cause and defendant’s motion for review
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`of copyright are DENIED AS MOOT.
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`It is further ORDERED that defendant Jeffery Anderson is ENJOINED, as follows:
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`(1) Anderson shall not make any statement or representation declaring, suggesting, or
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`implying that he or anyone associated with him owns or holds any rights superior to those
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`of the plaintiffs in the subject matter of his copyright filings, numbers VAu720-359, VAu729-
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`2:08-cv-13407-SJM-MKM Doc # 21 Filed 08/24/09 Pg 6 of 7 Pg ID 258
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`539, VAu731-213, VAu738-532, VAu750-583, and VAu753-629, or that those filings in any
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`way give him the right to restrict or impede plaintiffs’ transactions with respect to the
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`Hatchetman design.
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`(2) Anderson shall not manufacture, display, promote, disseminate, or sell any goods
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`incorporating the Hatchetman design or any works derivative of the Hatchetman design.
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`This includes goods incorporating the subject matter of copyright numbers VAu720-359,
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`VAu729-539, VAu731-213, VAu738-532, VAu750-583, and VAu753-629, or any imitation
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`or derivative thereof.
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`(3) Anderson shall not make any statement or perform any act suggesting that he, the
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`subject matter of the copyrights listed above, or any goods manufactured by him
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`incorporating that subject matter, are associated or authorized either directly or indirectly
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`by the plaintiffs, or by anyone associated with the plaintiffs.
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`(4) Anderson shall promptly produce to plaintiffs’ counsel all goods, advertising and
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`promotional materials, and any other materials in his possession or control, that incorporate
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`the Hatchetman design or any work derivative thereof, including incorporations of the
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`copyrights listed above and any imitative or derivative thereof. Anderson shall similarly
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`produce all such goods in the possession or control of persons or entities associated with
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`him. Anderson’s failure to comply with this order in good faith, and to cooperate with
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`plaintiffs’ counsel on the same basis, shall result in sanctions being levied against him by
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`the Court.
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`2:08-cv-13407-SJM-MKM Doc # 21 Filed 08/24/09 Pg 7 of 7 Pg ID 259
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`It is further ORDERED that discovery on the question of plaintiffs’ damages shall cease by
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`75 days from the date of this order. Within 90 days of the entry of this order, plaintiffs shall
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`file on the docket an election between actual damages and statutory damages. Should the
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`plaintiffs elect statutory damages and still wish to pursue the additional remedy of an
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`accounting, this filing should include briefing as to why that additional remedy is appropriate
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`in this case. Should plaintiffs elect actual damages and profits, their election should be
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`accompanied by a motion for summary judgment or default judgment on the amount of
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`damages, should they choose so to move. This filing may also include briefing on the
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`propriety of multiple damages and attorneys’ fees in this case.
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`SO ORDERED.
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`s/Stephen J. Murphy, III
`STEPHEN J. MURPHY, III
`United States District Judge
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`Dated: August 24, 2009
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`I hereby certify that a copy of the foregoing document was served upon the parties and/or
`counsel of record on August 24, 2009, by electronic and/or ordinary mail.
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`Alissa Greer
`Case Manager
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