Case 1:22-cv-00887-BKS-DJS Document 10 Filed 04/07/23 Page 1 of 16
`
`
`
`
`
`No. 1:22-cv-00887 (BKS/DJS)
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF NEW YORK
`
`Plaintiff,
`
`Defendant.
`
`
`CHRISTOPHER SADOWSKI,
`
`
`
`v.
`
`URBANSPOTLITE LLC,
`
`
`
`
`Appearance:
`
`For Plaintiff:
`Daniel DeSouza
`CopyCat Legal PLLC
`3111 N. University Drive, Suite 301
`Coral Springs, FL 33065
`
`Hon. Brenda K. Sannes, Chief United States District Judge:
`
`MEMORANDUM-DECISION AND ORDER
`
`I.
`
`INTRODUCTION
`
`On August 25, 2022, Plaintiff Christopher Sadowski brought this action against
`
`Defendant Urbanspotlite LLC, alleging copyright infringement pursuant to the Copyright Act of
`
`1976. (Dkt. No. 1). Defendant has not answered the Complaint or otherwise appeared in this
`
`action. (See Dkt. Nos. 5, 7). Presently before the Court is Plaintiff’s motion under Federal Rule
`
`of Civil Procedure 55(b) for a default judgment against Defendant. (Dkt. No. 9). Plaintiff seeks a
`
`permanent injunction, $9,000 in statutory damages, and $3,257.80 in attorneys’ fees and costs.
`
`(Id.). For the reasons that follow, Plaintiff’s motion is granted.
`
`

`

`Case 1:22-cv-00887-BKS-DJS Document 10 Filed 04/07/23 Page 2 of 16
`
`II.
`
`FACTS
`
`In 2021, Plaintiff, an “award winning” and “widely published” photojournalist, created a
`
`professional photograph titled “080721nypdarmpatch24CS” (the “Work”), which depicted a
`
`New York Police Department Officer’s arm patch. (Dkt. No. 1, ¶¶ 6–7, 12). Plaintiff “specializes
`
`in photo-documenting ordinary life and the human condition,” and he “spends countless hours
`
`capturing hundreds of photographs and then processing [them] to ensure they meet customers’
`
`requirements.” (Id. ¶¶ 7, 9). On December 31, 2021, Plaintiff registered the Work with the
`
`Register of Copyrights; the Work was assigned Registration No. VA 2-288-279. (Id. ¶ 13; id. at
`
`10 (Copyright Registration)). Plaintiff serves as the licensing agent for his photographs, and
`
`licenses them for limited use by Plaintiff’s customers. (Id. ¶ 11). Plaintiff’s terms include “a
`
`limited, one-time license for use of any particular photograph by the customer only,” and make
`
`clear that “all ownership remains with Plaintiff and that [his] customers are not permitted to
`
`transfer, assign, or sub-license any of Plaintiff’s photographs.” (Id.).
`
`On April 14, 2022, Plaintiff discovered the Work on Defendant’s website. (Id. ¶ 22).
`
`Defendant is “a media platform and event promoter” that advertises and markets its business
`
`through its website, social media, and other forms of advertising. (Id. ¶¶ 15–16). Defendant used
`
`the Work as the main photo associated with a blog article titled “Off Duty Cop Arrested for
`
`Beating Girlfriend” and dated March 10, 2022. (Id. ¶¶ 17, 20; id. at 20 (screenshot of
`
`Defendant’s website displaying the Work)). Plaintiff has never licensed Defendant to use or
`
`display the Work, and Defendant has never contacted Plaintiff seeking permission to use or
`
`display the Work. (Id. ¶ 19). Plaintiff alleges, upon information and belief, that “Defendant
`
`located a copy of the Work on the internet and, rather than contact Plaintiff to secure a license,
`
`[it] simply copied the Work for its own commercial use.” (Id. ¶ 21). Following Plaintiff’s
`
`2
`
`

`

`Case 1:22-cv-00887-BKS-DJS Document 10 Filed 04/07/23 Page 3 of 16
`
`discovery, he notified Defendant in writing of the unauthorized use but was unable to negotiate
`
`a reasonable license. (Id. ¶ 22).
`
`III. DISCUSSION
`
`
`
`Procedural Requirements
`
`“Rule 55 of the Federal Rules of Civil Procedure provides a two-step process for
`
`obtaining a default judgment.” Priestley v. Headminder, Inc., 647 F.3d 497, 504 (2d Cir. 2011).
`
`First, under Rule 55(a), the plaintiff must obtain a clerk’s entry of default. Fed. R. Civ. P. 55(a)
`
`(“When a party against whom a judgment for affirmative relief is sought has failed to plead or
`
`otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the
`
`party’s default.”); see also Local Rule 55.1 (requiring a party seeking a clerk’s entry of default to
`
`“submit an affidavit showing that (1) the party against whom it seeks a judgment . . . is not an
`
`infant, in the military, or an incompetent person (2) a party against whom it seeks a judgment for
`
`affirmative relief has failed to plead or otherwise defend the action . . . and (3) it has properly
`
`served the pleading to which the opposing party has not responded.”). Second, under Rule
`
`55(b)(2), the plaintiff must “apply to the court for entry of a default judgment.” Priestley, 647
`
`F.3d at 505; see also Local Rule 55.2(b) (“A party shall accompany a motion to the Court for the
`
`entry of a default judgment, pursuant to Fed. R. Civ. P. 55(b)(2), with a clerk’s certificate of
`
`entry of default . . . a proposed form of default judgment, and a copy of the pleading to which no
`
`response has been made.”).
`
`Here, Plaintiff has complied with the procedural requirements for obtaining a default
`
`judgment. On September 27, 2022, Plaintiff requested a clerk’s entry of default under Rule 55(a)
`
`and, as required by Local Rule 55.1, Plaintiff submitted an affidavit affirming that Urbanspotlite
`
`LLC (1) is not an infant, incompetent, or an active duty member of the United States Armed
`
`Forces; (2) was properly served; and (3) has defaulted in this action. (Dkt. No. 6, ¶¶ 1–4).
`
`3
`
`

`

`Case 1:22-cv-00887-BKS-DJS Document 10 Filed 04/07/23 Page 4 of 16
`
`Plaintiff properly served Defendant in accordance with Fed. R. Civ. P. 4(h)(1)(B) by serving the
`
`Complaint on an authorized agent for Defendant. (Dkt. No. 5). On October 7, 2022, Plaintiff
`
`received a clerk’s entry of default against the Defendant. (Dkt. No. 7).
`
`On November 7, 2022, Plaintiff moved for default judgment under Fed. R. Civ. P.
`
`55(b)(2) and Local Rule 55.2(b). (Dkt. No. 9). Plaintiff served the motion on Defendant by mail,
`
`(Dkt. No. 9, at 14–15), and Defendant has filed no response. As the procedural requirements for
`
`entry of default judgment are met, the Court will address liability.
`
`Liability
`
`By failing to answer the Complaint or oppose this motion, Defendant is deemed to have
`
`admitted the factual allegations in the Complaint. Greyhound Exhibitgroup, Inc. v. E.L.U.L.
`
`Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) (“[A] party’s default is deemed to constitute a
`
`concession of all well pleaded allegations of liability.”); Rolex Watch, U.S.A., Inc. v. Pharel, No.
`
`09-cv-4810, 2011 WL 1131401, at *2, 2011 U.S. Dist. LEXIS 32249, at *5–6 (E.D.N.Y. Mar.
`
`11, 2011) (“In considering a motion for default judgment, the court will treat the well-pleaded
`
`factual allegations of the complaint as true, and the court will then analyze those facts for their
`
`sufficiency to state a claim.”).
`
`“The decision whether to enter default judgment is committed to the district court’s
`
`discretion.” Greathouse v. JHS Sec. In., 784 F.3d 105, 116 (2d Cir. 2015). Even where a
`
`defendant has admitted all well-pleaded facts in the complaint by virtue of default, a district
`
`court “need not agree that the alleged facts constitute a valid cause of action,” and may decline to
`
`enter a default judgment on that ground. City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d
`
`114, 137 (2d Cir. 2011) (quoting Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir.
`
`1981)). Indeed, the Second Circuit has “suggested that, prior to entering default judgment, a
`
`district court is ‘required to determine whether the [plaintiff’s] allegations establish [the
`
`4
`
`

`

`Case 1:22-cv-00887-BKS-DJS Document 10 Filed 04/07/23 Page 5 of 16
`
`defendant’s] liability as a matter of law.’” Id. (quoting Finkel v. Romanowicz, 577 F.3d 79, 84
`
`(2d Cir. 2009)).
`
`Based on the allegations in the Complaint, Defendant is liable for copyright infringement
`
`pursuant to the Copyright Act. “The Copyright Act of 1976 grants copyright owners the
`
`exclusive right to reproduce their copyrighted work, to prepare derivatives of the work, and to
`
`sell copies of the work.” Feingold v. RageOn, Inc., 472 F. Supp. 3d 94, 98 (S.D.N.Y. 2020)
`
`(citations omitted); see 17 U.S.C. §§ 106–22. To establish copyright infringement, a plaintiff
`
`must prove two elements: “(1) ownership of a valid copyright, and (2) copying of constituent
`
`elements of the work that are original.” Arista Records LLC v. Doe 3, 604 F.3d 110, 117 (2d Cir.
`
`2010) (quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)).
`
`With regard to the first element, a “certificate of registration” made within five years
`
`after first publication of a work “constitute[s] prima facie evidence of the validity of the
`
`copyright.” 17 U.S.C. § 410(c). Once a party proffers a certificate of copyright registration, “the
`
`party challenging the validity of the copyright has the burden to prove the contrary.” Stern v.
`
`Lavender, 319 F. Supp. 3d 650, 669 (S.D.N.Y. 2018) (quoting Hamil Am. Inc. v. GFI, 193 F.3d
`
`92, 98 (2d Cir. 1999)). Here, Plaintiff alleges that he created the Work in 2021 and registered it
`
`“with the Register of Copyrights on December 31, 2021,” (Dkt. No. 1, ¶ 13), and attaches a copy
`
`of the copyright registration to his Complaint and motion for default judgment, (Dkt. No. 1, at
`
`10–18; Dkt. No. 9-1). Thus, Plaintiff established ownership of a valid copyright. See Kelly Toys
`
`Holdings, LLC v. alialialiLL Store, 606 F. Supp. 3d 32, 50–51 (S.D.N.Y. 2022) (finding that the
`
`first element of copyright infringement was met on a default judgment motion where the plaintiff
`
`“allege[d] that it [was] the owner of U.S. Copyright Registration numbers covering” the works at
`
`5
`
`

`

`Case 1:22-cv-00887-BKS-DJS Document 10 Filed 04/07/23 Page 6 of 16
`
`issue), report and recommendation adopted by 2022 WL 2072567, 2022 U.S. Dist. LEXIS
`
`103587 (S.D.N.Y. June 9, 2022).
`
`Second, to establish the copying element, “the plaintiff must first show that his work was
`
`actually copied; second, he must establish substantial similarity or that the copying amounts to
`
`an improper or unlawful appropriation.” Yague v. Visionaire Publ’g LLC, No. 19-cv-11717,
`
`2021 WL 4894676, at *1, 2021 U.S. Dist. LEXIS 174583, at *3 (S.D.N.Y. Sept. 14, 2021)
`
`(quoting Tufenkian Imp./Exp. Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 131 (2d Cir.
`
`2003)). A plaintiff may demonstrate actual copying with indirect evidence, such as “proof that
`
`the defendant[] had access to the copyrighted work and similarities that are probative of copying
`
`between the works.” Spin Master Ltd. v. 158, 463 F. Supp. 3d 348, 369 (S.D.N.Y. 2020) (quoting
`
`Hamil. Am. Inc., 193 F.3d at 99).
`
`Here, Plaintiff alleges that Defendant was never licensed to use the Work, and that
`
`Defendant did not contact Plaintiff about using the Work. (Dkt. No. 1, ¶ 19). Plaintiff submits
`
`screenshots of the Work and Defendant’s allegedly infringing article, which appear to be
`
`identical, (id. ¶¶ 12, 13, 17; Dkt. No. 1, at 20), and thus Plaintiff’s “allegations are sufficient to
`
`make out a claim for copyright infringement,” Yague, 2021 WL 4894676, at *1, 2021 U.S. Dist.
`
`LEXIS 174583, at *3 (finding that the plaintiff’s allegations established copyright infringement
`
`on a motion for default judgment where the work and the copied work were “identical”); see
`
`Craine v. Beyond the W, LLC, No. 19-cv-2259, 2021 WL 930255, at *1, 2021 U.S. Dist. LEXIS
`
`45568, at *2–3 (E.D.N.Y. Mar. 11, 2021) (finding that the plaintiff’s allegations established
`
`copyright infringement on a motion for default judgment where the defendant published an
`
`article “on its website that featured the [p]hotograph” and the plaintiff alleged that the defendant
`
`“did not have [her] permission or consent to publish the [p]hotograph on its website”).
`
`6
`
`

`

`Case 1:22-cv-00887-BKS-DJS Document 10 Filed 04/07/23 Page 7 of 16
`
`Thus, the Court finds that Plaintiff has established the elements of his copyright
`
`infringement claim.
`
`
`
`Damages
`
`“[I]t is well established that ‘[w]hile a party’s default is deemed to constitute a
`
`concession of all well pleaded allegations of liability, it is not considered an admission of
`
`damages.’” Cement & Concrete Workers Dist. Council Welfare Fund v. Metro Found.
`
`Contractors Inc., 699 F.3d 230, 234 (2d Cir. 2012). On a motion for default judgment, a court
`
`must “conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.”
`
`Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151,155 (2d Cir. 1999) (citing
`
`Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., Div. of Ace Young Inc., 109
`
`F.3d 105, 111 (2d Cir. 1997)). “There must be an evidentiary basis for the damages sought by
`
`plaintiff, and a district court may determine if there is sufficient evidence . . . based . . . upon a
`
`review of affidavits and documentary evidence.” Cement & Concrete Workers, 699 F.3d at 234
`
`(citing Fed. R. Civ. P. 55(b)(2)).
`
`As noted, Plaintiff seeks (1) statutory damages pursuant to 17 U.S.C. § 504(c)(1) in the
`
`amount of $9,000, based on a finding that Defendant’s infringement was willful, (Dkt. No. 9, at
`
`11–12); (2) an award of costs, including attorneys’ fees, incurred in connection with this action
`
`in the amount of $3,257.80, (id. at 12–13); and (3) a permanent injunction prohibiting Defendant
`
`from future infringing reproductions of Plaintiff’s works, (id. at 13–14).
`
`1.
`
`Statutory Damages
`
`Plaintiff elects to recover statutory damages in the amount of $9,000. (Dkt. No. 9, at 11–
`
`12). Under the Copyright Act, a plaintiff may elect to recover an award of statutory damages, in
`
`lieu of actual damages, “in a sum of not less than $750 or more than $30,000 as the court
`
`considers just.” 17 U.S.C. § 504(c)(1). Where the Court finds “that infringement was committed
`
`7
`
`

`

`Case 1:22-cv-00887-BKS-DJS Document 10 Filed 04/07/23 Page 8 of 16
`
`willfully, the [C]ourt in its discretion may increase the award of statutory damages to a sum of
`
`not more than $150,000.” Id. § 504(c)(2). “Within these statutory limits, the Copyright Act
`
`affords the Court wide discretion.” Broad. Music, Inc. v. Buffalo Wing Joint & Pub, LLC, 431 F.
`
`Supp. 3d 147, 155 (W.D.N.Y. 2019) (citation omitted).
`
`Courts in this Circuit consider the following factors to determine the amount of statutory
`
`damages: “(1) the infringer’s state of mind; (2) the expenses saved, and profits earned, by the
`
`infringer; (3) the revenue lost by the copyright holder; (4) the deterrent effect on the infringer
`
`and third parties; (5) the infringer’s cooperation in providing evidence concerning the value of
`
`the infringing material; and (6) the conduct and attitude of the parties.” Bryant v. Media Right
`
`Prods., Inc., 603 F.3d 135, 144 (2d Cir. 2010). “[C]ourts in this Circuit commonly award, in
`
`cases of non-innocent infringement, statutory damages of between three and five times the cost
`
`of the licensing fees the defendant would have paid.” Broad. Music, Inc. v. Prana Hosp., Inc.,
`
`158 F. Supp. 3d 184, 199 & n.12 (S.D.N.Y. Jan. 21, 2016) (collecting cases).
`
`As an initial matter, Defendant’s “copyright infringement is deemed willful by virtue of
`
`[] [its] default.” Rovio Ent., Ltd. v. Allstar Vending, Inc., 97 F. Supp. 3d 536, 546 (S.D.N.Y.
`
`2015) (citations omitted). In light of Defendant’s willful infringement, the first, fifth, and sixth
`
`factors weigh against Defendant. See Broad. Music, Inc. v. Metro Lounge & Café LLC, No. 10-
`
`cv-1149, 2013 WL 286361, at *4, 2013 U.S. Dist. LEXIS 9934, at *12 (N.D.N.Y. Jan. 24, 2013).
`
`Further, as Plaintiff argues, the Court cannot evaluate the second factor because Defendant has
`
`not appeared in this action. (Dkt. No. 9, at 10–11); see Strike 3 Holdings, LLC v. Doe, No. 18-cv-
`
`5305, 2021 WL 4896862, at *3, 2021 U.S. Dist. LEXIS 179208, at *9 (E.D.N.Y. Sept. 20, 2021)
`
`(noting that “it is impossible for the Court to ascertain what, if any profits Defendant earned by
`
`infringing), report and recommendation adopted, 2021 WL 4894161, 2021 U.S. Dist. LEXIS
`
`8
`
`

`

`Case 1:22-cv-00887-BKS-DJS Document 10 Filed 04/07/23 Page 9 of 16
`
`202389 (E.D.N.Y. Oct. 20, 2021). As to the third factor, Plaintiff submits a sworn declaration
`
`stating that his lost revenue is the “$1,800.00 annual license fee,” which is consistent with the
`
`invoices for prior licensing fees submitted by Plaintiff. (Dkt. No. 9, at 10; Dkt. No. 9-1, ¶ 14).
`
`Finally, the fourth factor weighs in favor of statutory damages beyond actual damages because
`
`“an award of statutory damages could deter future infringements by the Defendant and third
`
`parties.” Farrington v. Fingerlakes1.com, Inc., No. 19-cv-6802, 2020 WL 7350336, at *6, 2020
`
`U.S. Dist. LEXIS 235712, at *14 (W.D.N.Y. Dec. 15, 2020) (citation omitted).
`
`Considering these factors, the Court finds that $7,200—not $9,000—in statutory damages
`
`is reasonable. Plaintiff alleges that “Defendant displayed the Work from at least March 2022
`
`through at least May 2022,” and thus would have paid at least $1,800 for the annual license fee.
`
`(Dkt. No. 9, at 10). The Court finds that quadrupling that fee, for an award of $7,200, serves the
`
`“compensatory and punitive” purposes of statutory damages. Fitzgerald Publ’g Co. v. Baylor
`
`Publ’g Co., 807 F.2d 1110, 1117 (2d Cir. 1986). This is within the range of awards in similar
`
`cases involving willful infringement of copyrighted photographs. See Korzeniewski v. Sapa Pho
`
`Vietnamese Rest. Inc., No. 17-cv-5721, 2019 WL 312149, at *8, 2019 U.S. Dist. LEXIS 1901, at
`
`*19 (E.D.N.Y. Jan. 3, 2019) (awarding “just under five times [the] licensing fee” where the
`
`defendant willfully infringed the plaintiff’s copyrighted photo by posting the photo on its website
`
`without the plaintiff’s consent), report and recommendation adopted, 2019 WL 291145, 2019
`
`U.S. Dist. LEXIS 10949 (E.D.N.Y. Jan. 23, 2019); Nat’l Photo Grp., LLC v. Bigstar Ent., Inc.,
`
`No. 13-cv-5467, 2014 WL 1396543, at *4, 2014 U.S. Dist. LEXIS 50790, at *11 (S.D.N.Y. Apr.
`
`11, 2014) (awarding statutory damages of $9,000 for willful infringement of a photo with a
`
`$3,000 licensing fee), report and recommendation adopted, 2014 WL 5051275, 2014 U.S. Dist.
`
`LEXIS 143992 (S.D.N.Y. Oct. 8, 2014).
`
`9
`
`

`

`Case 1:22-cv-00887-BKS-DJS Document 10 Filed 04/07/23 Page 10 of 16
`
`Accordingly, the Court awards Plaintiff $7,200 in statutory damages.
`
`2.
`
`Attorneys’ Fees and Costs
`
`Plaintiff seeks $2,812.50 in attorneys’ fees and $445.30 in costs, for a total of $3,257.80.
`
`(Dkt. No. 9, at 12–13). Under the Copyright Act, a “court in its discretion may allow the
`
`recovery of full costs by or against any party other than the United States,” which includes “a
`
`reasonable attorney’s fee to the prevailing party as part of the costs.” 17 U.S.C. § 505. In
`
`determining the reasonableness of requested attorneys’ fees, “the Court begins by using the
`
`‘lodestar method’ to calculate a ‘presumptively reasonable fee.’” McGlynn v. Cools, Inc., No.
`
`19-cv-3520, 2020 WL 6561658, at *4, 2020 U.S. Dist. LEXIS 116761, at *10–11 (S.D.N.Y. July
`
`1, 2020) (quoting Millea v. Metro-N. R. Co., 658 F.3d 154, 166 (2d Cir. 2011)). The lodestar is
`
`“the product of a reasonable hourly rate and the reasonable number of hours required by the
`
`case.” Id. In the Second Circuit, there is a presumption in favor of the “forum rule,” which
`
`requires courts to employ “the hourly rates . . . in the district in which the reviewing courts sits in
`
`calculating the presumptively reasonable fee.” Simmons v. N.Y.C. Transit Auth., 575 F.3d 170,
`
`174 (2d Cir. 2009) (quotation omitted). To rebut the presumption, a party seeking higher out-of-
`
`district rates “must make a particularized showing, not only that the selection of out-of-district
`
`counsel was predicated on experience-based, objective factors, but also of the likelihood that use
`
`of in-district counsel would produce a substantially inferior result.” Id. at 176.
`
`Courts may, after the initial calculation of the presumptively reasonable fee, adjust the
`
`total when it “does not adequately take into account a factor that may properly be considered in
`
`determining a reasonable fee.” Lilly v. City of New York, 934 F.3d 222, 230 (2d Cir. 2019) (citing
`
`Millea, 658 F.3d at 167). The “fee applicant has the burden of showing by satisfactory
`
`evidence—in addition to the attorney’s own affidavits—that the requested hourly rates are the
`
`10
`
`

`

`Case 1:22-cv-00887-BKS-DJS Document 10 Filed 04/07/23 Page 11 of 16
`
`prevailing market rates.” Farbotko v. Clinton Cty. of New York, 433 F.3d 204, 209 (2d Cir. 2005)
`
`(quotation omitted).1
`
`Here, Plaintiff’s counsel submitted a sworn declaration, which is supported by attached
`
`billing records, asserting that his firm spent 8.50 hours total on the case: Plaintiff’s counsel, a
`
`principal shareholder, spent 3.15 hours on the case, an associate attorney spent 4.15 hours on the
`
`case, and a paralegal spent 1.20 hours on the case. (Dkt. No. 9-2, ¶ 9; id. at 8). Plaintiff’s counsel
`
`attached an itemized invoice to his declaration, which reflects the same time distribution. (Dkt.
`
`No. 9-2, at 8). This is a reasonable number of hours required by a motion for default judgment in
`
`a copyright infringement case. See Broad. Music, Inc. v. DeJohn’s on Lark, Inc., No. 19-cv-637,
`
`2020 WL 1986903, at *6, 2020 U.S. Dist. LEXIS 73262, at *18 (N.D.N.Y. Apr. 27, 2020)
`
`(finding 28.9 hours working on a motion for default judgment in a copyright infringement case
`
`reasonable); Broad. Music, Inc. v. Rider Rock’s Holding LLC, No. 16-cv-1398, 2017 WL
`
`2992498, at *3, 2017 U.S. Dist. LEXIS 109383, at *7 (N.D.N.Y. July 14, 2017) (finding 15.5
`
`hours working on a motion for default judgment in a copyright infringement case reasonable).
`
`Further, Plaintiff’s counsel requests an hourly rate of $450 for himself, an hourly rate of
`
`$300 for the associate attorney, and an hourly rate of $125 for the paralegal. (Dkt. No. 9-2, at 8).
`
`Plaintiff, “one of two principal shareholders of the law firm,” alleges that this hourly rate is
`
`“within the range charged by other lawyers in South Florida,” and is reasonable considering that
`
`he “ha[s] served as counsel of record in approximately 250 federal civil and/or bankruptcy
`
`actions and 250+ state court lawsuits in Florida/New York.” (Id. ¶ 6); cf. Eileen Grays, LLC v.
`
`Remix Lighting, Inc., No. 18-cv-362, 2019 WL 6609834, at *7, 2019 U.S. Dist. LEXIS 209445,
`
`
`1 Plaintiff also relies on 17 U.S.C. § 1203(b)(5), which permits prevailing parties to seek attorneys’ fees for a
`violation of the Digital Millennium Copyright Act (“DMCA”). (Dkt. No. 9, at 12–13). Because Plaintiff’s
`Complaint does not plead a violation of the DMCA, the Court will not assess attorneys’ fees for such a violation.
`
`11
`
`

`

`Case 1:22-cv-00887-BKS-DJS Document 10 Filed 04/07/23 Page 12 of 16
`
`at *17–18 (N.D.N.Y. Dec. 5, 2019) (finding that a plaintiff rebutted the forum rule presumption
`
`where the attorneys were “a partner with Morgan Lewis” and an attorney who “previously
`
`worked at the U.S. Copyright Office,” and had “specialized expertise,” and an attorney with an
`
`“existing relationship with the [p]laintiff”). Although the Court may consider Plaintiff’s
`
`counsel’s experience in assessing a reasonable hourly rate, see DeJohn’s on Lark, Inc., 2020 WL
`
`1986903, at *7, 2020 U.S. Dist. LEXIS 73262, at *18–19 (collecting cases), these allegations do
`
`not establish that in-district counsel would produce a substantially inferior result. Thus, the
`
`presumptively reasonable rate is evaluated based on the Northern District of New York.2
`
`In DeJohn’s on Lark, Inc., the Court held that the requested hourly rate of $450 was
`
`“considerably higher than what is usually expected in the Northern District of New York.” 2020
`
`WL 1986903, at *7, 2020 U.S. Dist. LEXIS 73262, at *18 (citing Rider Rock’s Holding LLC,
`
`2017 WL 2992498, at *3, 2017 U.S. Dist. LEXIS 109383, at *7). “Cases in this district have
`
`found reasonable rates to generally be $275-$350 for experienced partners, $165-200 for junior
`
`associates, and $90 for paralegals.” Holick v. Cellular Sales of N.Y., LLC, No. 12-cv-584, 2021
`
`WL 964206, at *3, 2021 U.S. Dist. LEXIS 47393, at *7 (N.D.N.Y. Mar. 15, 2021); see
`
`Richardson v. N.Y.S. Off. of Mental Health, No. 11-cv-1007, 2018 WL 2021536, at *2, 2018
`
`U.S. Dist. LEXIS 72762, at *4 (N.D.N.Y. Apr. 30, 2018) (finding $165 per hour for an associate
`
`attorney and $80 per hour for a paralegal reasonable where the plaintiff “provide[d] no
`
`information about the qualifications of the associate attorneys and paralegals who worked on
`
`[the] case”).
`
`
`2 Plaintiff also misunderstands the forum rule. Plaintiff claims that the requested hourly rates are “within the range
`constituting the ‘forum rate’ generally applied by courts in the New York federal courts for attorneys of similar
`experience.” (Dkt. No. 9-2, at 4 (citing cases from the Eastern District of New York and Southern District of New
`York)). However, under the forum rule, the Court only considers the presumptively reasonable rate in the Northern
`District of New York. See Simmons, 575 F.3d at 174.
`
`12
`
`

`

`Case 1:22-cv-00887-BKS-DJS Document 10 Filed 04/07/23 Page 13 of 16
`
`As a result of Plaintiff’s counsel’s nearly two decades of experience and his status as a
`
`principal shareholder, which is presumably akin to a partner, the Court reduces his billable rate
`
`to $350 per hour. (Dkt. No. 9-2, at 2–3). Plaintiff’s counsel provides no additional information
`
`about the associate attorney’s experience or the paralegal’s experience. Thus, the Court will
`
`reduce the billable rate to $165 per hour for the associate attorney and $90 per hour for the
`
`paralegal. Thus, based on the hours worked and reduced hourly rate, the Court finds that Plaintiff
`
`is entitled to a total of $1,895.25 in attorneys’ fees.
`
`Moreover, Plaintiff seeks $445.30 in costs, which is comprised of $402 for the Complaint
`
`filing fee and $43.30 for service of process on Defendant. (Dkt. No. 9, ¶ 13). Plaintiff’s billing
`
`records and the docket report substantiate these costs. (Dkt. No. 1; Dkt. No. 9-2, at 9). The Court
`
`therefore finds that Plaintiff is entitled to recover these costs. See Sony BMG Music Ent. v.
`
`Larkin, 08-cv-702, 2009 WL 2176641, at *2, 2009 U.S. Dist. LEXIS 62616, at *4 (N.D.N.Y.
`
`July 22, 2009) (awarding $480 for filing and service fees).
`
`Accordingly, the Court finds that Plaintiff is entitled to recover a total of $2,340.55 in
`
`attorneys’ fees and costs.
`
`D.
`
`Injunctive Relief
`
`Plaintiff seeks a permanent injunction against Defendants under the Copyright Act
`
`enjoining Defendant from directly or indirectly infringing the Work’s copyright and from
`
`directly or indirectly reproducing, displaying, or distributing any of Plaintiff’s copyrighted
`
`photographs. (Dkt. No. 9, at 14).3
`
`
`3 In full, Plaintiff seeks “a permanent injunction against Defendant, its employees, agents, officers, directors,
`attorneys, successors, affiliates, subsidiaries, vendors and assigns, and all those in active concert and participation
`with Defendant, prohibiting it from (a) directly or indirectly infringing Plaintiff’s copyrights or continuing to
`market, offer, sell, dispose of, license, lease, transfer, publicly display, advertise, reproduce, develop, or manufacture
`any works derived or copied from Plaintiff’s copyrighted photograph or to participate or assist in any such activity;
`
`13
`
`

`

`Case 1:22-cv-00887-BKS-DJS Document 10 Filed 04/07/23 Page 14 of 16
`
`“A court may issue an injunction on a motion for default judgment provided that the
`
`moving party shows that (1) it is entitled to injunctive relief under the applicable statute and (2)
`
`it meets the prerequisites for the issuance of an injunction.” Kingvision Pay-Per-View LTD. v.
`
`Lalaleo, 429 F. Supp. 2d 506, 516 (E.D.N.Y. 2006) (internal quotation marks omitted). Under
`
`the Copyright Act, a court may grant “final injunctions on such terms as it may deem reasonable
`
`to prevent or restrain infringement of a copyright.” 17 U.S.C. § 502(a). A plaintiff seeking an
`
`injunction must show: “(1) that [he] has suffered an irreparable injury; (2) that remedies
`
`available at law, such as monetary damages, are inadequate to compensate for that injury; (3)
`
`that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity
`
`is warranted; and (4) that the public interest would not be disserved by a permanent injunction.”
`
`Salinger v. Colting, 607 F.3d 68, 77 (2d Cir. 2010) (quoting eBay, Inc. v. MercExchange, L.L.C.,
`
`547 U.S. 388, 391 (2006)) (noting that the eBay standard applies to copyright injunctions).
`
`“Generally, a plaintiff must show the threat of [a] continuing violation in order to be entitled to
`
`injunctive relief.” Barrera v. Brooklyn Music, Ltd., 346 F. Supp. 2d 400, 412–13 (S.D.N.Y.
`
`2004) (alteration in original) (citation omitted).
`
`All of these factors militate toward granting Plaintiff’s requested permanent injunction
`
`enjoining Defendant from infringing the Work’s copyright. First, Plaintiff has alleged and
`
`offered evidence that Defendant infringed his copyright, causing irreparable injury to Plaintiff.
`
`See Rovio Ent., Ltd., 97 F. Supp. 3d at 547 (finding that the plaintiff suffered irreparable injury
`
`where it obtained a default judgment that the defendant infringed its copyright and trademark).
`
`Further, “Defendant’s ability to continue [its] infringement absent an injunction shows that
`
`
`and (b) directly or indirectly reproducing, displaying, distributing, otherwise using, or retaining any copy, whether in
`physical or electronic form, of any copyrighted photograph owned by Plaintiff.” (Dkt. No. 9, at 14).
`
`14
`
`

`

`Case 1:22-cv-00887-BKS-DJS Document 10 Filed 04/07/23 Page 15 of 16
`
`monetary damages are insufficient to provide Plaintiff with relief.” Strike 3 Holdings, LLC, 2021
`
`WL 4896862, at *3, 2021 U.S. Dist. LEXIS 179208, at *9 (citation omitted). Moreover, the
`
`balance of hardships favors Plaintiff because “[i]t is axiomatic that an infringer . . . cannot
`
`complain about the loss of ability to offer its infringing product.” McGraw-Hill Glob. Educ.
`
`Holdings, LLC v. Khan, 323 F. Supp. 3d 488, 500 (S.D.N.Y. 2018) (quoting Rovio Ent., Ltd., 97
`
`F. Supp. 3d at 547). Finally, a permanent injunction would not disserve the public interest
`
`because “‘the public has a compelling interest in protecting copyright owners’ marketable rights
`
`to their work’ so as to ‘encourage the production of creative work.’” Beastie Boys v. Monster
`
`Energy, 87 F. Supp. 3d 672, 679 (S.D.N.Y. 2015) (quoting WPIX, Inc. v. ivi, Inc., 691 F.3d 275,
`
`287 (2d Cir. 2012)).
`
`However, in light of the fact that the Complaint only alleges that Defendant infringed on
`
`one copyrighted photograph and absent any evidence indicating a likelihood of the infringement
`
`of Plaintiff’s other copyrighted photographs, the Court declines to issue an injunction as to all of
`
`Plaintiff’s copyrighted works. Cf. Beastie Boys, 87 F. Supp. 3d at 680–81 (denying the plaintiff’s
`
`request for “a permanent injunction that sweeps beyond the use of the infringing Ruckus video
`
`on which this case [was] focused” in a case where the infringing video was likely an “anomalous
`
`occurrence,” the defendant “promptly removed the video from its website” and the court found
`
`that the transgressions were “unlikely to recur”).
`
`Accordingly, the Court grants Plaintiff a permanent injunction enjoining Defendant, its
`
`employees, agents, officers, attorneys, and all those in active concert or participation with these
`
`individuals from infringing the Work’s copyright. See Fed. R. Civ. P. 65(d)(2); Kelly Toys
`
`Holdings, LLC v. Airpods Pro Store, No. 21-cv-8435, 2022 WL 2801077, at *9 (S.D.N.Y. July
`
`15
`
`

`

`Case 1:22-cv-00887-BKS-DJS Document 10 Filed 04/07/23 Page 16 of 16
`
`18, 2022) (eliminating “successors and assigns” from a plaintiff’s proposed permanent injunction
`
`so that the court’s order tracks the language in Rule 65(d)(2)).
`
`IV.
`
`CONCLUSION
`
`For these reasons, it is hereby
`
`ORDERED that Plaintiff’s motion for default judgment (Dkt. No. 9) is GRANTED
`
`and Plaintiff is awarded $7,200 in statutory damages and $2,340.55 in fees and costs; and it is
`
`further
`
`ORDERED that Defendant, its employees, agents, officers, attorneys, and all those in
`
`active concert or participation with these individuals are hereby permanently enjoined from
`
`directly or