Case 5:23-cv-00675-FJS-MJK Document 17 Filed 06/18/24 Page 1 of 17
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`Plaintiff,
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`5:23-CV-675
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`OF COUNSEL
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`CRAIG B. SANDERS, ESQ.
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`NO APPEARANCE
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF NEW YORK
`______________________________________________
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`ALAN DAVIS,
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`v.
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`XPW WRESTLING INC.,
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`Defendant.
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`______________________________________________
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`APPEARANCES
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`SANDERS LAW GROUP
`333 Earle Ovington Boulevard
`Suite 402
`Uniondale, New York 11553
`Attorneys for Plaintiff
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`XPW WRESTLING INC.
`Defendant
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`SCULLIN, Senior Judge
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`MEMORANDUM-DECISION AND ORDER
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`I. BACKGROUND
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`A.
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`Procedural Background
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`Plaintiff commenced this action after he discovered that Defendant had copied and
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`displayed one of his copyright-protected photographs without a license or permission in violation
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`of, among other things, 17 U.S.C. § 501. See Dkt. No. 15-12, Memorandum of Law, at 7. On
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`July 21, 2023, Plaintiff filed a request for a Clerk's entry of default against Defendant, see Dkt.
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`No. 7, which the Clerk entered the same day, see Dkt. No. 8. On October 23, 2023, Plaintiff filed
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`the pending motion for entry of a default judgment. See Dkt. No. 15.
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`Case 5:23-cv-00675-FJS-MJK Document 17 Filed 06/18/24 Page 2 of 17
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`Plaintiff contends that he is entitled to a default judgment because (1) Defendant has
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`failed to answer or otherwise appear in this action, the time for Defendant to do so has expired,
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`and such time has not been extended by Order of the Court; and (2) the complaint sets forth
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`sufficient factual predicate to establish a prima facie claim for direct copyright infringement. See
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`id. Furthermore, Plaintiff states that, by defaulting or otherwise failing to appear, Defendant is
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`deemed to have admitted all well-pleaded factual allegations in the complaint. See id.
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`Therefore, Plaintiff seeks entry of a default judgment in the amount of $20,719.50, comprised of
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`the following amounts: (1) statutory damages in the amount of $12,500.00; (2) costs in the
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`amount of $457.00; and attorney's fees in connection with the prosecution of this action in the
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`amount of $7,762.50. See id. In addition, Plaintiff seeks a permanent injunction enjoining
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`Defendant from continuing to use Plaintiff's copyrighted material. See id.
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`B.
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`Factual background
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`According to the complaint, Plaintiff is a professional photographer by trade, who is the
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`legal and rightful owner of photographs that he licenses to online and print publications. See
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`Dkt. No. 15-12, Memorandum of Law, at 9 (citing Complaint at ¶ 11; Davis Dec. at ¶ 3).
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`Plaintiff states that he has invested significant time and money in building his photograph
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`portfolio. See id. at 10 (citing Complaint at ¶ 13; Davis Dec. at ¶ 4). Plaintiff has also obtained
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`active and valid copyright registrations from the United States Copyright Office ("USCO") that
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`cover many of his photographs while others are the subject of pending copyright applications.
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`See id. (citing Complaint at ¶ 14; Davis Dec. at ¶ 5). Plaintiff asserts that his photographs are
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`original, creative works in which he owns protectable copyright interests. See id. (citing
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`Complaint at ¶ 15; Davis Decl. at ¶ 6).
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`Case 5:23-cv-00675-FJS-MJK Document 17 Filed 06/18/24 Page 3 of 17
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`On December 16, 2018, Plaintiff authored a photograph of professional wrestling
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`commentator Ron Niemi (the "Photograph"). See id. (citing Complaint at ¶¶ 16-17; Davis Dec.
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`at ¶ 13). Plaintiff applied to register the Photograph with the USCO on or about March 11, 2019,
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`under Application No. 1-7495355921, and the Photograph was subsequently registered under
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`Registration No. VA 2-142-919 on March 11, 2019. See id. (citing Complaint at ¶ 19; Davis
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`Dec., Exhibit 1, "Certificate of Registration").
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`Defendant is a professional wrestling promotion company that owns and operates a social
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`medial account on Facebook at www.facebook.com with the name "The XPW Wrestling" ("FB
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`Account"). See id. (citing Complaint at ¶ [3]). Defendant also owns and operates a social media
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`account on Instagram at www.instagram.com with the name "thexpwwrestling" ("IG Account")
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`and on Twitter at www.twitter.com with the name "@Thexpwwrestling" ("TW Account"). See
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`id. (citing Complaint at ¶¶ 4-5 (the FB Account, IG Account, and TW Account may be
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`hereinafter collectively referred to as the "Accounts")). According to Plaintiff, the Accounts are
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`part of and used to advance Defendant's commercial enterprise. See id. (citing Complaint at
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`¶ 23). These Accounts are also used to advertise and promote Defendant's sponsored wrestling
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`events as well as Defendant's associated merchandise and, upon information and belief,
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`Defendant profits from these activities. See id. (citing Complaint at ¶ 25).
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`On October 13, 2022, Plaintiff saw his Photograph on the Accounts. See id. (citing
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`Complaint at ¶ 36; Davis Dec. at ¶ 29). Defendant displayed the Photograph on FB Account at
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`URL:https://www/facebook.com/photo.php?fbid=562040022403542&set=pb.100057926485268
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`.-220752000.&type=3 See id. at 11 (citing Dkt. No. 1-2; Complaint at ¶ 26; Davis Dec. at ¶ 33).
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`On October 20, 2022, Defendant posted the Photograph to FB Account. See id. (citing Dkt. No.
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`1-2; Complaint at ¶ 27; Davis Dec. at ¶ 33).
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`Case 5:23-cv-00675-FJS-MJK Document 17 Filed 06/18/24 Page 4 of 17
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`On October 13, 2022, Defendant also posted the Photograph on TW Account. See id.
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`(citing Dkt. No. 1-2; Complaint at ¶ 30; Davis Dec. at ¶ 34). On October 13, 2022, Defendant
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`also posted the Photograph to IG Account. See id. (citing Dkt. No. 1-2; Complaint at ¶ 33; Davis
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`Dec. at ¶ 35). Finally, on November 10, 2022, Defendant posted the Photograph to IG Account.
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`See id. (citing Dkt. No. 1-2; Complaint at ¶ 34; Davis Dec. at ¶ 35).
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`Plaintiff contends that each infringing use is an exact copy of the vast majority of
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`Plaintiff's original image, which Defendant directly copied and displayed on the Accounts. See
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`id. (citing Complaint at ¶ 41; Davis Dec. at ¶ 30). Defendant did not obtain a license or other
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`permission from Plaintiff to feature the Photograph on its Accounts. See id. (citing Complaint at
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`¶ 39; Davis Dec. at ¶ 36). Plaintiff states, on information and belief, that Defendant received a
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`financial benefit directly attributable to the infringements. See id. (citing Complaint at ¶ 47.
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`Again, on information and belief, Plaintiff asserts that the Infringement increased traffic to the
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`Accounts and, in turn, caused Defendant to realize an increase in the revenues generated via
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`Defendant's sponsored events and/or merchandise sales. See id. (citing Complaint at ¶ 48).
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`Finally Plaintiff contends that, on information and belief, a large number of people have viewed
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`the unlawful copies of the Photograph on the Accounts. See id. (citing Complaint at ¶ 49).
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`Plaintiff asserts that he did not authorize Defendant's use of the Photograph and did not
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`license the right to use his Photograph to Defendant in any manner. See id. Notwithstanding the
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`foregoing, Defendant arrogated to itself the right to copy, store and display that which did not
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`belong to Defendant. See id. at 12. As a result of Defendant's misconduct, Plaintiff contends
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`that he has been substantially harmed insofar as he has been deprived of his right to control the
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`use of his Photograph and to determine the value of the same. See id. Plaintiff, through his
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`counsel, notified Defendant on February 28, 2023, by electronic mail of the unlawful use of
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`Case 5:23-cv-00675-FJS-MJK Document 17 Filed 06/18/24 Page 5 of 17
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`Plaintiff's Photograph. See id. (citing Complaint at ¶ 37). Despite notification of its unlawful
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`activities, however, Defendant continued to display Plaintiff's Photograph in furtherance of its
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`commercial activities on each of the Accounts. See id.
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`A.
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`II. DISCUSSION
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`Liability
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`By failing to answer the complaint or oppose Plaintiff's motion for entry of a default
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`judgment, Defendant is deemed to have admitted the factual allegations in the complaint. See
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`Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) (finding
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`that "a party's default is deemed to constitute a concession of all well pleaded allegations of
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`liability").
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`Whether to enter a default judgment, however, is committed to the court's discretion. See
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`Greathouse v. JHS Sec. Inc., 784 F.3d 105, 116 (2d Cir. 2015) (citation omitted). "Even where a
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`defendant has admitted all well-pleaded facts in the complaint by virtue of default, a district
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`court 'need not agree that the alleged facts constitute a valid cause of action,' and may decline to
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`enter a default judgment on that ground." Sadowski v. Urbanspotlite LLC, No. 1:22-cv-00887
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`(BKS/DJS), 2023 WL 2838376, *2 (N.D.N.Y. Apr. 7, 2023) (Sannes, C.J.) (quoting City of New
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`York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (quoting Au Bon Pain Corp.
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`v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981))). In fact, "the Second Circuit has 'suggested that,
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`prior to entering default judgment, a district court is "required to determine whether the
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`[plaintiff's] allegations establish [the defendant's] liability as a matter of law."'" Id. (quoting
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`[Mickalis Pawn Shop, 645 F.3d at 137] (quoting Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir.
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`2009))).
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`Case 5:23-cv-00675-FJS-MJK Document 17 Filed 06/18/24 Page 6 of 17
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`"The Copyright Act of 1976 grants copyright owners the exclusive right to reproduce
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`their copyrighted work, to prepare derivatives of the work, and to sell copies of the work."
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`Feingold v. RageOn, Inc., 472 F. Supp. 3d 94, 98 (S.D.N.Y. 2020) (citations omitted); see also 17
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`U.S.C. §§ 106-122. To establish copyright infringement, a plaintiff must prove two elements:
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`"'(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are
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`original.'" Arista Records LLC v. Doe 3, 604 F.3d 110, 117 (2d Cir. 2010) (quoting Feist
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`Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 361, 111 S. Ct. 1282, 113 L. Ed.
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`2d 358 (1991)) (other citation omitted).
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`With regard to the first element, a "certificate of registration" made within five years after
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`first publication of a work "constitute[s] prima facie evidence of the validity of the copyright[.]"
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`17 U.S.C. § 410(c). If a party proffers a certificate of copyright registration, "'the party
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`challenging the validity of the copyright has the burden to prove the contrary.'" Stern v.
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`Lavender, 319 F. Supp. 3d 650, 669 (S.D.N.Y. 2018) (quoting Hamil Am. [Inc. v. GFI], 193 F.3d
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`[92,] 98 [(2d Cir. 1999)]. In this case, Plaintiff alleges that he authored the Photograph on
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`December 16, 2018, see Dkt. No. 1, Complaint, at ¶ 16, and registered it "with the Register of
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`Copyrights on March 11, 2019," see id. at ¶ 19, and attaches a copy of the copyright registration
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`to his motion for default judgment, see Dkt. No. 15-2. Thus, Plaintiff has established ownership
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`of a valid copyright. See Kelly Toys Holdings, LLC v. alialialiLL Store, 606 F. Supp. 3d 32, 50-
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`51 (S.D.N.Y. 2022) (finding that the first element of copyright infringement was met on a default
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`judgment motion where the plaintiff "allege[d] that it [was] the owner of U.S. Copyright
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`Registration numbers covering" the works at issue), report and recommendation adopted by 606
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`F. Supp. 3d 32 (S.D.N.Y. 2022)).
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`Next, to establish the copying element, "'the plaintiff must first show that his work was
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`actually copied; second, he must establish a substantial similarity or that the copying amounts to
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`an improper or unlawful appropriation.'" Yague v. Visionaire Publ'g LLC, No. 19-cv-11717
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`(LJL), 2021 WL 4894676, *1 (S.D.N.Y. Sept. 14, 2021) (quoting Tufenkian Imp./Exp. Ventures,
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`Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 131 (2d Cir. 2003) (internal quotation marks
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`omitted)).
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`In this case, Plaintiff alleges that, "[w]ithout permission or authorization from Plaintiff,
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`Defendant volitionally copied and/or displayed Plaintiff's copyright protected Photograph on the
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`Accounts." See Dkt. No. 1, Complaint, at ¶¶ 35, 39. Plaintiff submitted screenshots of the
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`Photograph and Defendant's allegedly infringing posts to his Complaint, which appear to be
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`identical. See Dkt. Nos. 1-1, 1-2. Thus, the Court finds that Plaintiff's "allegations are sufficient
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`to make out a claim for copyright infringement." Yague, 2021 WL 4894676, at *1 (citation
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`omitted) (finding that the plaintiff's allegations established copyright infringement on a motion
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`for default judgment where the work and the copied work were "identical").
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`B.
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`Damages
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`"[I]t is well established that '[w]hile a party's default is deemed to constitute a concession
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`of all well pleaded allegations of liability, it is not considered an admission of damages.'"
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`Cement & Concrete Workers Dist. Council Welfare Fund, Pension Fund, Annuity Fund, Educ. &
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`Training Fund and Other Funds v. Metro Found. Contractors Inc., 699 F.3d 230, 234 (2d Cir.
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`2012) (quoting Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d
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`Cir. 1992)). When considering a motion for default judgment, a court must "conduct an inquiry
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`in order to ascertain the amount of damages with reasonable certainty." Credit Lyonnais Sec.
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`(USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999) (citing Transatlantic Marine Claims
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`Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997)). "There must be an
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`evidentiary basis for the damages sought by plaintiff, and a district court may determine there is
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`sufficient evidence . . . based . . . upon a review of detailed affidavits and documentary
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`evidence." Cement & Concrete Workers, 699 F.3d at 234 (citing Fed. R. Civ. P. 55(b)(2); Fustok,
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`873 F.2d at 40).
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`1. Statutory damages
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`Plaintiff seeks to recover statutory damages in the amount of $12,500.00. See Dkt. No.
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`15-12, Memorandum of Law, at 18-21. Pursuant to the Copyright Act, a plaintiff may elect to
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`recover an award of statutory damages, in lieu of actual damages, "in a sum of not less than $750
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`or more than $30,000 as the court considers just." 17 U.S.C. § 504(c)(1). Furthermore, when the
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`court finds "that infringement was committed willfully, the court in its discretion may increase
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`the award of statutory damages to a sum of not more than $150,000." 17 U.S.C. § 504(c)(2).
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`"'Within these statutory limits, the Copyright Act affords the Court wide discretion.'" Broad.
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`Music, Inc. v. Buffalo Wing Joint & Pub, LLC, 431 F. Supp. 3d 147, 155 (W.D.N.Y. 2019)
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`(quotation omitted).
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`Within the Second Circuit, courts consider the following factors to determine the amount
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`of statutory damages: "(1) the infringer's state of mind; (2) the expenses saved, and profits
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`earned, by the infringer; (3) the revenue lost by the copyright holder; (4) the deterrent effect on
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`the infringer and third parties; (5) the infringer's cooperation in providing evidence concerning
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`the value of the infringing material; and (6) the conduct and attitude of the parties." Bryant v.
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`Media Right Prods., Inc., 603 F.3d 135, 144 (2d Cir. 2010) (citing N.A.S. Impor. Corp. v.
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`Chenson Enter., Inc., 968 F.2d 250, 252-53 (2d Cir. 1992)). Furthermore, "courts in this Circuit
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`commonly award, in cases of non-innocent infringement, statutory damages of between three and
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`five times the cost of the licensing fees the defendant would have paid." Broad. Music, Inc. v.
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`Prana Hosp. Inc., 158 F. Supp. 3d 184, 199 & n.12 (S.D.N.Y. Jan. 21, 2016) (collecting cases).
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`As an initial matter, Defendant's "copyright infringement is deemed willful by virtue of []
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`[its] default." Rovio Ent., Ltd. v. Allstar Vending, Inc., 97 F. Supp. 3d 536, 546 (S.D.N.Y. 2015)
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`(citations omitted). In light of Defendant's willful infringement, the first, fifth, and sixth factors
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`weigh against Defendant. See Broad. Music, Inc. v. Metro Lounge & Café LLC, No. 5:10-CV-
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`1149 (NAM/ATB), 2013 WL 286361, *4 (N.D.N.Y. Jan. 24, 2013). In addition, the Court cannot
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`evaluate the second factor because Defendant has not appeared in this action. See Strike 3
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`Holdings, LLC v. Doe, No. 18-cv-7323 (DRH) (SIL), 2021 WL 4896862, *3 (E.D.N.Y. Sept. 20,
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`2021) (noting that "it is impossible for the Court to ascertain what, if any, profits Defendant
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`earned by infringing"), report and recommendation adopted, 2021 WL 4894161 (E.D.N.Y. Oct.
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`20, 2021). With regard to third factor, Plaintiff has submitted a sworn declaration in which he
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`states that he "would have charged Defendant a license fee of $2,500 for the Photograph,
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`depending on the number of platforms on which Defendant wanted to feature the Photograph and
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`for how long it wanted to use the Photograph." See Dkt. No. 15-1, Plaintiff's Affidavit, at ¶ 41.
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`Finally, the fourth factor weights in favor of statutory damages beyond actual damages because
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`"an award of statutory damages could deter future infringements by the Defendant and third
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`parties." Farrington v. Fingerlakes1.com, Inc., No. 19-CV-6802-FPG, 2020 WL 7350336, *6
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`(W.D.N.Y. Dec. 15, 2020) (citation omitted). In this regard, Plaintiff asks the Court "to find a
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`multiplier of five (5) times the licensing fee [he] would have charged Defendant had Defendant
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`sought a license to utilize [his] work to be an appropriate statutory award in this case, insofar as
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`[he] was advised that one of the purposes of a statutory award under the Copyright Act intended
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`to encompass a punitive component so as to impress upon the infringer that it is cheaper to
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`comply with Copyright, rather than to violate it." See id. at ¶ 48.
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`Having considered all of these factors, the Court finds that an award of $7,500 ($2,500
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`for each platform on which Defendant displayed the Photograph) in statutory damages is
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`reasonable. The Court also finds that an award of $7,500 in statutory damages serves the
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`"compensatory and punitive" purposes of statutory damages. Fitzgerald Publ'g Co., Inc. v.
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`Baylor Publ'g Co., Inc., 807 F.2d 1110, 1117 (2d Cir. 1986). Finally, the Court finds that this
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`award is within the range of awards in similar cases involving willful infringement of
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`copyrighted photographs. See, e.g., Sadowski, 2023 WL 2838376, at *4 (quadrupling the $1,800
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`annual license fee and awarding $7,200 in statutory damages); Korzeniewski v. Sapa Pho
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`Vietnamese Rest. Inc., No. 17-CV-5721-MKB-SJB, 2019 WL 312149, *8 (E.D.N.Y. Jan. 3, 2019)
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`(awarding "just under five times [the] licensing fee' where the defendant willfully infringed the
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`plaintiff's copyrighted photo by posting the photo on its website without the plaintiff's consent),
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`report and recommendation adopted, 2019 WL 291145 (E.D.N.Y. Jan. 23, 2019); Nat'l Photo
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`Grp., LLC v. Bigstar Ent. Inc., No. 13 Civ. 5467 (VSB) (JLC), 2014 WL 1396543, *4 (S.D.N.Y.
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`Apr. 11, 2014) (awarding statutory damages of $9,000 for willful infringement of a photo with a
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`$3,000 licensing fee), report and recommendation adopted, 2014 WL 5051275 (S.D.N.Y. Oct. 8,
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`2014).
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`2. Attorney's fees and costs
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`Plaintiff seeks $7,762.50 in attorney's fees and $457.00 in costs for a total of $8,219.50.
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`See Dkt. No. 15-12, Memorandum of Law, at 26; Dkt. No. 15-5, Declaration of Craig B.
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`Sanders. Under the Copyright Act, a "court in its discretion may allow the recovery of full costs
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`by or against any party other than the United States," which includes "a reasonable attorney's fee
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`to the prevailing party as part of the costs." 17 U.S.C. § 505. In determining the reasonableness
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`of requested attorney's fees, "the Court begins by using the 'lodestar method' to calculate a
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`'presumptively reasonable fee.'" McGlynn v. Cools, Inc., No. 19cv03520 (GBD) (DF), 2020 WL
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`6561658, *4 (S.D.N.Y. July 1, 2020) (quoting Millea v. Metro-N. R. Co., 658 F.3d 154, 166 (2d
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`Cir. 2011) (citation omitted)). "The lodestar is 'the product of a reasonable hourly rate and the
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`reasonable number of hours required by the case.'" Id. (quotation omitted). In the Second
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`Circuit, there is a presumption in favor of the "forum rule," which requires courts to employ "'the
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`hourly rates . . . in the district in which the reviewing court sits' in calculating the presumptive
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`reasonable fee." Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009) (quotation
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`and other citations omitted). To rebut the presumption, a party seeking higher out-of-district
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`rates "must make a particularized showing, not only that the selection of the out-of-district
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`counsel was predicated on experience-based, objective factors, but also of the likelihood that use
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`of in-district counsel would produce a substantially inferior result." Id. at 176.
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`Courts may, after the initial calculation of the presumptively reasonable fee, adjust the
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`total "when it does not adequately take into account a factor that may properly be considered in
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`determining a reasonable fee.'" Lilly v. City of New York, 934 F.3d 222, 230 (2d Cir. 2019)
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`(quoting Millea, 658 F.3d at 167 (quoting Perdue, 559 U.S. at 554, 130 S. Ct. 1662)). "[T]he fee
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`applicant has the burden of showing by 'satisfactory evidence – in addition to the attorney's own
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`affidavits' – that the requested hourly rates are the prevailing market rates." Farbotko v. Clinton
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`Cty. of New York, 433 F.3d 204, 209 (2d Cir. 2005) (quotation omitted).
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`Case 5:23-cv-00675-FJS-MJK Document 17 Filed 06/18/24 Page 12 of 17
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`In this case, Plaintiff's counsel submitted a sworn declaration, which is supported by
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`attached billing records, asserting that his firm expended a total of 23.1 hours on this case: (1)
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`Craig B. Sanders, Founding Partner of Sanders Law, PLLC and Sanders Law Group, 2.7 hours;
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`(2) Joshua D. Vera, an associate attorney, who received his J.D. and was admitted to the practice
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`of law in New York in 2021, 15.3 hours; (3) Jonathan M. Cader, a senior associate who received
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`his JD in 2001, 3.0 hours; (4) Laura Costigan, a paralegal, .4 hours; and (5) Courtney Smith, a
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`paralegal, 1.7 hours. See Dkt. No. 15-5 at ¶¶ 10-17. Having reviewed the billing records, the
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`Court finds that, although a little on the high side, the 23.1 hours expended on this case are
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`reasonable for a default judgment in a copyright infringement case. See Sadowski, 2023 WL
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`2838376, at *5 (finding that 8.5 hours "is a reasonable number of hours required by a motion for
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`default judgment in a copyright infringement case" (citing Broad. Music, Inc. v. DeJohn's on
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`Lark, Inc., No. 19-cv-637, 2020 WL 1986903, *6 (N.D.N.Y. Apr. 27, 2020) (finding 28.9 hours
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`working on a motion for default judgment in a copyright infringement case reasonable); Broad.
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`Music, Inc. v. Rider Rock's Holding LLC, No. 16-cv-1398, 2017 WL 2992498, *3, 2017 U.S.
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`Dist. LEXIS 109383 (N.D.N.Y. July 14, 2017) (finding 15.5 hours working on a motion for
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`default judgment in a copyright infringement case reasonable)).
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`With regard to an appropriate hourly rate for this work, Plaintiff requests the following
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`hourly rates: (1) $750.00 for Mr. Sanders, the founder and partner of his counsel's law firm; (2)
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`$550.00 for Mr. Cader, a senior associate at the firm; (3) $250.00 for Mr. Vera, an associate at the
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`firm; and (4) $125.00 for both paralegals at the firm. See Dkt. No. 15-5, Declaration of Craig B.
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`Sanders, at ¶¶ 10, 12, 14, 16, 17. Plaintiff argues that these hourly rates are "well within the
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`range of hourly billing for similarly experienced attorneys according with the Report of the
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`Economic Survey (2021) for the American Intellectual Property Law Association (see Exhibit 5
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`Case 5:23-cv-00675-FJS-MJK Document 17 Filed 06/18/24 Page 13 of 17
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`hereto) as well as the rates set forth in the Laffey Matric chart of hourly rates for attorneys and
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`paralegals in the Washington D.C. area that was prepared by the United States Attorney's Office
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`to be used in fee-shifting cases (Exhibit 6 hereto)." See id. at ¶¶ 10, 12,14 (emphasis added). In
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`addition, Plaintiff argues that all of the requested hourly rates "are reasonable because they
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`reflect the market rate for services of similar quality and nature for the prosecution of copyright
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`claims." See id. at ¶ 18.
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`Although the Court may consider Plaintiff's counsel's experience in assessing a
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`reasonable hourly rate, see DeJohn's on Lark, Inc., 2020 WL 1986903, at *7 (collecting cases),
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`the Court finds that Plaintiff's proposed hourly rates, which, at least in part, are based on "hourly
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`rates for attorneys and paralegals in the Washington, D.C. area," do not take into account the
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`reasonably hourly rate for attorneys in this District nor does Plaintiff argue that in-district
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`counsel, who would receive a lower hourly rate, would produce a substantially inferior result.
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`Thus, the Court concludes that, in calculating the reasonable hourly rate for Plaintiff's attorneys
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`and paralegals who worked on this case, the Court will use the reasonable rate for attorneys in
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`this District.
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`
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`In Broad. Music, Inc. v. Rider Rock's Holding LLC, 1:16-CV-1398 (TGS/ATB), 2017 WL
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`2992498 (N.D.N.Y. July 14, 2017), the court found that the requested hourly rate of $450.00 was
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`"considerably higher than what is usually expected in the Northern District of New York." Id. at
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`*3; see also Broad. Music, Inc. v. DeJohn's on Lark, Inc., No. 19-cv-637, 2020 WL 1986903, *7
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`(N.D.N.Y. Apr. 27, 2020) (collecting cases). "'Cases in this district have found reasonable rates
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`to generally be $275-$350 for experienced partners, $165-$200 for junior associates, and $90 for
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`paralegals.'" Holick v. Cellular Sales of N.Y. LLC, No. 12-CV-584 (DJS), 2021 WL 964206, *3
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`(N.D.N.Y. Mar. 15, 2021) (quotation and other citation omitted); see also Sadowski, 2023 WL
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`Case 5:23-cv-00675-FJS-MJK Document 17 Filed 06/18/24 Page 14 of 17
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`2838376, at *6 (finding that, "[a]s a result of Plaintiff's counsel's nearly two decades of
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`experience and his status as a principal shareholder, which is presumably akin to a partner, [his
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`requested $450 hourly rate should be reduced] to $350 per hour (citation omitted)).
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`
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`Based on the hourly rates for attorneys and paralegals in this District, the Court finds that
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`the following hourly rates are reasonable for the work that the following attorneys and paralegals
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`performed in this case: (1) Mr. Sanders -- $350.00; (2) Mr. Vera -- $200.00; Mr. Cader --
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`$250.00; and (4) paralegals -- $90.00. Multiplying these hourly rates by the number of hours
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`that each of these individuals expended on this case results in a total award of $4,944.00 in
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`attorney's fees: (1) Mr. Sanders ($350.00 x 2.7 hours); (2) Mr. Vera ($200.00 x 15.3 hours); (3)
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`Mr. Cader ($250.00 x 3 hours); and (4) Ms. Costigan and Ms. Smith ($90.00 x 2.1 hours).
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`
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`Finally, Plaintiff seeks $457.00 in costs, which is comprised of $402.00 for the Complaint
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`filing fee and $55.00 for service of process on Defendant. See Dkt. No. 15-12, Memorandum of
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`Law, at 25. Plaintiff's billing records and the docket report substantiate these costs. See id.; Dkt.
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`No. 15-5, Declaration of Craig B. Sanders, at ¶ 21 & Exhibit 3 attached thereto. Therefore, the
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`Court finds that Plaintiff is entitled to recover these costs. See Sadowski, 2023 WL 2838376, at
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`*6 (citing Sony BMG Music Ent. v. Larkin, 08-cv-702, 2009 WL 2176641, at *2, 2009 U.S. Dist.
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`LEXIS 62616 (N.D.N.Y. July 22, 2009) (awarding $480 for filing and service fees)).
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`
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`Accordingly, the Court concludes that Plaintiff is entitled to recover a total of $5,401.00
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`in attorney's fees and costs.
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`3. Injunctive relief
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`Plaintiff seeks a permanent injunction against Defendant under the Copyright Act
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`enjoying Defendant from "displaying the Photograph on its Accounts or in any alternative
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`medium under Defendant's control." See Dkt. No. 15-12, Memorandum of Law, at 26.
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`
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`"A court 'may issue an injunction on a motion for default judgment provided that the
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`moving party shows that (1) it is entitled to injunctive relief under the applicable statute and (2)
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`it meets the prerequisites for the issuance of an injunction.'" Kingvision Pay-Per-View Ltd. v.
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`Lalaleo, 429 F. Supp. 2d 506, 516 (E.D.N.Y. 2006) (quoting Main Events/Monitor Prods. V.
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`Batista, No. 96-CV-5089, 1998 WL 760330, at *1 (E.D.N.Y. Aug. 26, 1998)). Under the
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`Copyright Act, a court may grant "final injunctions on such terms as it may deem reasonable to
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`prevent or restrain infringement of a copyright." 17 U.S.C. § 502(a). A plaintiff who seeks an
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`injunction must show the following: "'(1) that [he] has suffered an irreparable injury; (2) that
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`remedies available at law, such as monetary damages, are inadequate to compensate for that
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`injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a
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`remedy in equity is warranted; and (4) that the public interest would not be disserved by a
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`permanent injunction.'" Salinger v. Colting, 607 F.3d 68, 77 (2d Cir. 2010) (quoting eBay, [Inc.
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`v. MercExchange, L.L.C.,] 547 U.S. [3]88, 391, 126 S. Ct. 1837[, 164 L. Ed. 2d 641 (2006)])
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`(noting that the eBay standard applies to copyright injunctions). "'Generally, a plaintiff must
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`show the threat of [a] continuing violation in order to be entitled to injunctive relief.'" Barrera v.
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`Brooklyn Music, Ltd., 346 F. Supp. 2d 400, 412-13 (S.D.N.Y. 2004) (quotation omitted).
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`
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`All of these factors weigh in favor of granting Plaintiff's request for a permanent
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`injunction enjoining Defendant from infringing the Photograph's copyright. First, Plaintiff has
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`Case 5:23-cv-00675-FJS-MJK Document 17 Filed 06/18/24 Page 16 of 17
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`alleged and offered evidence that Defendant infringed his copyright, causing irreparable injury to
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`Plaintiff. See Rovio Ent. Ltd. v. Allstar Vending, Inc., 97 F. Supp. 3d 536, 547 (S.D.N.Y. 2015)
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`(finding that the plaintiff suffered irreparable injury where it obtained a default judgment that the
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`defendant infringed its copyright and trademark). Furthermore, "Defendant's ability to continue
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`[its] infringement absent an injunction shows that monetary damages are insufficient to provide
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`Plaintiff with relief." Malibu Media, LLC v. Doe, No. 18-cv-0055 (DRH) (SIL), 2020 WL
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`2770921, *4 (E.D.N.Y. Apr. 20, 2020) (citing Rovio Entm't, Ltd., 97 F. Supp. 3d at 547 (finding
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`monetary damages insufficient to provide relief where there existed a danger that defendant
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`might continue infringing), report and recommendation adopted by 2020 WL 2769412 (E.D.N.Y.
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`May 28, 2020). Moreover, the balance of hardships favors Plaintiff because "'[i]t is axiomatic
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`that an infringer . . . cannot complain about the loss of ability to offer its infringing product.'"
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`McGraw-Hill Glob. Educ. Holdings, LLC v. Khan, 323 F. Supp. 3d 488, 500 (S.D.N.Y. 2018)
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`(quoting Rovio Ent., Ltd. v. Allstar Vending, Inc., 97 F. Supp. 3d 536, 547 (S.D.N.Y. 2015)).
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`Finally, a permanent injunction would not disserve the public interest because "'the public has a
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`compelling interest in protecting copyright owners' marketable rights to their work' so as to
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`'encourage the production of creative work.'" Beastie Boys v. Monster Energy, 87 F. Supp. 3d
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`672, 679 (S.D.N.Y. 2015) (quoting WPIX, Inc. v. ivi, Inc., 691 F.3d 275, 287 (2d Cir. 2012)
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`(citing, inter alia, Golan v. Holder, ___ U.S. ___, 132 S. Ct. 873, 890, 181 L. Ed. 2d 835 (2012);
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`Metro-Goldwyn-Mayer Studios, 545 U.S. at 961, 125 S. Ct. 2764)).
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`For all these reasons, the Court grants Plaintiff's motion for a permanent injunction
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`enjoining Def