`
`UNITED STATES DISTRICT COURT
`
`FOR THE EASTERN DISTRICT OF VIRGINIA
`Alexandria Division
`
`MTI ENTERPRISES INC.
`d/b/a MUSIC THEATRE INTERNATIONAL
`
`and
`
`MUSIC THEATRE INTERNATIONAL, LLC
`d/b/a MUSIC THEATRE INTERNATIONAL
`
`Plaintiffs,
`
`V.
`
`THEATERPALOOZA COMMUNITY
`THEATER PRODUCTIONS, INC.
`d/b/a THEATERPALOOZA
`
`Defendant.
`
`Case No. l:18-cv-650 (TSE/IDD)
`
`REPORT AND RECOMMENDATION
`
`This matter is before the Court on the Motion for Default Judgment from MTI
`
`Enterprises, Inc., d/b/a Music Theatre International and Music Theatre International, LLC d/b/a
`
`Music Theatre International against Theaterpalooza Community Theater Productions, Inc., d/b/a
`
`Theaterpalooza pursuant to Federal Rule of Civil Procedure 55(b)(2). (Dkt. No. 12).
`
`After a licensed attorney for Defendant failed to appear at the hearing on August 10,
`
`2018, the undersigned Magistrate Judge took this matter under advisement to issue this Report
`
`and Recommendation. Upon consideration of the Complaint, Plaintiffs' Motion for Default
`
`Judgment and the memorandum thereto, the undersigned Magistrate Judge makes the following
`
`findings and recommends that default judgment be GRANTED in part and DENIED in part
`
`against Defendant.
`
`
`
`Case 1:18-cv-00650-TSE-IDD Document 17 Filed 12/07/18 Page 2 of 14 PageID# 480
`Case 1:18-cv-00650-TSE-IDD Document 17 Filed 12/07/18 Page 2 of 14 PagelD# 480
`
`I.
`
`INTRODUCTION
`
`On June 1, 2018, Plaintiffs filed this action under Sections 106 and 501 of the Copyright
`
`Act of the United States as amended, 17 U.S.C. §§ 106 and 501, alleging copyright infringement.
`
`(Compl. ii 11). Plaintiffs allege that Defendant infringed and will infringe on the copyrights for
`
`various musical plays in which Plaintiffs have exclusive licensing rights.
`
`(Compl.
`
`ii 36).
`
`Defendant failed to submit responsive pleadings and did not appear at the August 10, 2018
`
`hearing on Plaintiffs’ Motion for Default Judgment. (Dkt. No. 14). Plaintiffs seek a money
`
`judgment awarding maximum statutory damages, a permanent injunction, and attomey’s fees
`
`and costs. (Dkt. No. 12 at 10).
`
`A. Jurisdiction and Venue
`
`For a court to render default judgment over a party, it must have subject matter and
`
`personal jurisdiction over the party and be the appropriate venue for the action. This Court has
`
`subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1331 because this case arises
`
`under federal law, the Copyright Act. (Compl. 111] 8-9). This Court has personal jurisdiction over
`
`Defendant because Defendant regularly conducts business in the Commonwealth of Virginia, the
`
`infringing acts took place in the Commonwealth of Virginia, and Plaintiffs suffered infringement
`
`injury in the Commonwealth of Virginia. (Compl. {I 10). Pursuant to 28 U.S.C. § 1391(b)(2),
`
`venue is proper in this District because a substantial part of the events giving rise to the claims
`
`occurred in this District. (Compl. 1H] 7, 11, 22). Therefore, the undersigned recommends a
`
`finding that jurisdiction and venue are proper with respect to the Defendant in this action.
`
`B. Service of Process
`
`Federal Rule of Civil Procedure 4(h) governs service upon corporations, partnerships,
`
`and other unincorporated associations and allows service by following state law where the
`
`
`
`Case 1:18-cv-00650-TSE-IDD Document 17 Filed 12/07/18 Page 3 of 14 PageID# 481
`Case 1:18-cv-00650-TSE-IDD Document 17 Filed 12/07/18 Page 3 of 14 PagelD# 481
`
`district court is located. See Fed. R. Civ. P. 4(h)(1)(A). On June 26, 2018, a private process
`
`server served Teresa Walker, registered agent for Defendant, by delivering a copy of the
`
`Summons and Verified Complaint to 44611 Guilford Drive, #155, Ashbum, Virginia 20147.
`
`(Dkt. No. 8). Therefore, properly served Defendant with process.
`
`C. Grounds for Default
`
`Plaintiffs filed their Complaint on June 1, 2018. (Dkt. No. 1). Defendant failed to appear,
`
`answer, or file any responsive pleading in this matter. On July 25, 2018, the Clerk entered default
`
`against Defendant upon Plaintiffs’ Request for Entry of Default. (Dkt. Nos. 9-10). On August 1,
`
`2018, Plaintiffs filed a Motion for Default Judgment, and the Court held a hearing on the matter
`
`on August 10, 2018. (Dkt. Nos. 12, 14). After Defendant failed to appear at the August 10, 2018
`
`hearing, the undersigned Magistrate Judge took this matter under advisement to issue this Report
`
`and Recommendation.
`
`11.
`
`FACTUAL FINDINGS
`
`The undersigned Magistrate Judge makes the following findings of fact based on the
`
`Complaint, the Motion for Default Judgment, and memorandum in support thereof.1 Plaintiff
`
`MTI Enterprises, Inc. (“MTI”), is a musical licensing agency incorporated in New York. (Compl.
`
`11 6). Plaintiff Musical Theatre International, LLC is an affiliate of Plaintiff MTI organized in
`
`Delaware.
`
`(1d,). Collectively, pursuant
`
`to Representation Agreements, Plaintiffs have the
`
`exclusive right to license performances of copyrighted musicals, such as Annie, Mama Mia!, and
`
`Hairspray. (Compl. 1111 12-21). For small scale amateur productions, Plaintiff MTI charges a
`
`licensing fee and materials rental charge ranging from $1,500 to $2,500 per production,
`
`1 Because Defendant failed to answer Plaintiffs’ Complaint, Defendant admits Plaintiffs’ factual allegations. Fed R.
`Civ. P. 8(b)(6) (“An allegation—other than one relating to the amount of damages—is admitted if a responsive
`pleading is required and the allegation is not denied”); see also GlobalSamaFe Corp. v. Globalsanlafe.com, 250 F.
`Supp. 2d 610, 612 n.3 (ED. Va. 2003) (“Upon default, facts alleged in the complaint are deemed admitted and the
`appropriate inquiry is whether the facts alleged state a claim”).
`
`
`
`Case 1:18-cv-00650-TSE-IDD Document 17 Filed 12/07/18 Page 4 of 14 PageID# 482
`Case 1:18-cv-OO650-TSE-IDD Document 17 Filed 12/07/18 Page 4 of 14 PagelD# 482
`
`depending on variables including the number of performances, seats per performance, and
`
`amount of admission fees charged for each performance. (Compl. 1H] 15, 18, 21).
`
`Defendant, a non-profit Florida corporation, offers children musical theater classes and
`
`camps in Ashburn, Virginia, Leesburg, Virginia, and Hagerstown, Maryland. (Compl. 1111 7, 22).
`
`Defendant offers after school programs, acting classes, and theater camps, and charges tuition
`
`fess up to $600 per child. (Compl. 111] 22, 32). Defendant presents numerous musical theater
`
`productions and charges an admission fee of $15 for adults and $12 for children. (Compl. 1111 7,
`
`32). Plaintiffs allege that many of Defendant’s musical productions are copyright protected and
`
`were performed without a license or authorization, in violation of the Copyright Act. (Compl. 1[
`
`23). Prior to filing this pending suit, Plaintiffs attempted to stop Defendant from infringing on its
`
`copyrighted musicals by sending Defendant multiple notices informing Defendant of its unlawful
`
`activity. (Compl. W 27-31).
`
`As early as January 12, 2015, Plaintiff MTI contacted Ms. Walker, owner and principal
`
`for Defendant, and informed her that Defendant was infringing on Plaintiffs’ copyrighted work
`
`of Mary Poppins and demanded a halt of the performance until a license was obtained. (Compl. 1]
`
`27). Ms. Walker responded on the same day and claimed that Defendant was not using any
`
`copyrighted materials and that a payment would be made for Mary Poppins. (1d). Plaintiff MTI
`
`did not receive a payment for the unauthorized productions of Mary Poppins. (Id).
`
`On April 13, 2015, Plaintiff MTI then sent a follow up notice repeating its earlier demand
`
`with respect to Defendant’s infringing use of copyrighted works and the outstanding balance of
`
`$1,110.00 for Defendant’s Mary Poppins production. (Id. ). Plaintiffs did not receive a payment.
`
`(101). On December 1, 2016, Plaintiff MTI sent another notice reiterating the same demands.
`
`(Compl.
`
`11 28). Despite these notices,
`
`in the summer of 2016, Defendant presented an
`
`
`
`Case 1:18-cv-00650-TSE-IDD Document 17 Filed 12/07/18 Page 5 of 14 PageID# 483
`Case 1:18-cv-OO650-TSE-IDD Document 17 Filed 12/07/18 Page 5 of 14 Page|D# 483
`
`unauthorized production ofAnnie as part of its summer camp. (Compl. 11 24).
`
`In February, March, and April of 2017, Plaintiff MTI received notices from customers
`
`that Defendant was continuing to advertise and promote unlicensed shows. (Compl.
`
`11 29).
`
`Accordingly, on May 15, 2017, Plaintiff MTI sent a demand by e-mail and Federal Express
`
`indicating that such performances cannot be presented without a valid performance license.
`
`(Compl. 1] 29; Compl. Ex. T). On December 12, 2017, Plaintiffs’ legal counsel sent Defendant
`
`another letter informing her of the infringements and that the payment of $1,110.00 for Mary
`
`Poppins was still outstanding. (Compl. 11 30; Compl. Ex. U). Ms. Walker did not respond to this
`
`letter despite being requested to do so. (Compl. 1] 30). Plaintiffs’ legal counsel contacted Ms.
`
`Walker again on January 18, 2018, and demanded a response by February 1, 2018. (Compl. 1]
`
`31). Ms. Walker did not respond. (Compl. fl 31). In the spring of 2018, Defendant presented a
`
`production ofAnnie. (Compl. 11 25).
`
`On July 17, 2018, two media reports were published in Loudoun County detailing the
`
`pending lawsuit. (Dkt. No. 16 Ex. A-B). In the Loudoun Now publication, Ms. Walker stated that
`
`Defendant had “been in talks” with Plaintiffs. (Dkt. No. 16 Ex. A). In the Loudoun Times Mirror
`
`publication, Ms. Walker stated, Defendant “has been working with MTI’s attorneys for several
`
`weeks to resolve the issue.” (Dkt. No. 16 Ex. B). On July 24, 2018, Ms. Walker sent an email to
`
`Defendant’s clients and acknowledged that
`
`there is a pending suit against Defendant and
`
`admitted that money was owed to Plaintiffs. (Dkt. No. 16 Ex. C). During this time, Defendant
`
`advertised unlicensed performances, the most recent being Annie, Mamma Mia!, and Hairspray
`
`for July and August 2018. (Compl. 11 32).
`
`
`
`Case 1:18-cv-00650-TSE-IDD Document 17 Filed 12/07/18 Page 6 of 14 PageID# 484
`Case 1:18-cv-OO650-TSE-IDD Document 17 Filed 12/07/18 Page 6 of 14 PagelD# 484
`
`III.
`
`EVALUATION OF PLAINTIFFS’ COMPLAINT
`
`Rule 55 of the Federal Rules of Civil Procedure provides for the entry of default
`
`judgment when “a party against whom a judgment for affirmative relief is sought has failed to
`
`plead or otherwise defend.” Fed. R. Civ. P. 55(a). A defendant in default concedes the factual
`
`allegations of the complaint. See, e.g., DIRECTV, Inc. v. Rawlz'ns, 523 F.3d 318, 322, n.2 (4th
`
`Cir. 2008); Partington v. Am. Int ’1 Specialty Lines Ins. C0., 443 F .3d 334, 341 (4th Cir. 2006);
`
`Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir. 2001). Default does not,
`
`however, constitute an admission of the adversary’s conclusions of law and is not to be “treated
`
`as an absolute confession by the defendant of his liability and of the plaintiffs right to recover.”
`
`Ryan, 253 F.3d at 780 (quoting Nishimatsu Constr. Co., Ltd. v. Hous. Nat ’1 Bank, 515 F.2d 1200,
`
`1206 (5th Cir. 1975)).
`
`Instead, the Court must “determine whether the well—pleaded allegations
`
`in [the plaintiffs] complaint support the relief sought in [the] action.” Id.
`
`Thus,
`
`in issuing this Report and Recommendation, the undersigned Magistrate Judge
`
`must evaluate Plaintiffs’ claims against the standards of Rule 12(b)(6) of the Federal Rules of
`
`Civil Procedure to ensure that the Complaint contains plausible claims upon which relief may be
`
`granted. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining the analysis for examining a
`
`plaintiff’s claims under a 12(b)(6) motion to dismiss). To meet this standard, a complaint must
`
`set forth “sufficient factual matter, accepted as true, to state a claim for relief that is plausible on
`
`its face.” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In determining
`
`whether allegations are plausible, the reviewing court may draw on context, judicial experience,
`
`and common sense. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citing Iqbal, 556
`
`U.S. at 679).
`
`
`
`Case 1:18-cv-00650-TSE-IDD Document 17 Filed 12/07/18 Page 7 of 14 PageID# 485
`Case 1:18-cv-OO650-TSE-IDD Document 17 Filed 12/07/18 Page 7 of 14 Page|D# 485
`
`A. Copyright Infringement
`
`Plaintiffs assert a claim of willful copyright infringement against Defendant in violation
`
`of the Copyright Act, 17 U.S.C. §§ 106 and 501. The Copyright Act allows a copyright owner
`
`the “exclusive rights to do and to authorize .
`
`.
`
`. in the case of .
`
`.
`
`. musical. .
`
`. works, to perform
`
`the copyrighted work publicly. .
`
`. .” 17 U.S.C. § 106(4). The Copyright Act further provides that
`
`anyone who violates any of the exclusive rights of the copyright owner is an infringer. 17 U.S.C.
`
`§ 501(a). To establish copyright infringement, a plaintiff must prove two things: (1) ownership of
`
`a valid copyright and (2) that the defendant copied original elements of the copyrighted work.
`
`Feist Publ’ns, Inc. v. Rural Tel. Serv., C0., 499 US. 340, 361 (1991). A court may determine
`
`willfiil infringement from evidence indicating a defendant received notice informing him that a
`
`particular material was protected. See Superior Form Builders. Inc. v. Dan Chase Taxidermy
`
`Supply Co., 74 F.3d 488, 496 (4th Cir. 1996) (citing to Video Views, Inc. v. Studio 2], Ltd. 925
`
`F.2d 1010, 1021 (7th Cir. 1991)). Generally, a prevailing party is entitled to remedies including
`
`final injunctions and monetary damages. 17 U.S.C. §§ 502, 504.
`
`1. Ownership of Valid Copyright
`
`Pursuant
`
`to Representation Agreements,
`
`the authors of Annie, Mamma Mia], and
`
`Hairspray granted Plaintiffs the exclusive right to license the performances of these works.
`
`(Compl. 11 12—21). Furthermore, Plaintiffs are presumed to have valid copyrights because the
`
`copyrights for Annie, Mamma Mia], and Hairspray musicals are registered with the United
`
`States Copyright Office. (Compl. Ex. A—C); see 17 U.S.C. § 410(c) (stating that a certificate of
`
`registration is “prima facie evidence of the validity of the copyright”); Sari v. Am. ’s Home Place,
`
`Inc., 129 F. Supp. 3d 317, 326 (ED. Va. 2015) (stating that a copyright registration creates a
`
`presumption of a valid copyright and shifts the burden to the defendant to rebut (citing Universal
`
`
`
`Case 1:18-cv-00650-TSE-IDD Document 17 Filed 12/07/18 Page 8 of 14 PageID# 486
`Case 1:18-cv-00650-TSE-IDD Document 17 Filed 12/07/18 Page 8 of 14 PagelD# 486
`
`Furniture Int ’1, Inc. v. Collezione Europa USA, Inc, 618 F.3d 417, 428 (4th Cir. 2010))). By
`
`failing to answer the Complaint, Defendant has failed to rebut the presumption that Plaintiffs
`
`own valid copyrights for Annie, Mamma Mia!, and Hairspray. Therefore,
`
`the undersigned
`
`concludes that Plaintiffs own valid copyrights for Annie, Mamma Mia!, and Hairspray.
`
`2.
`
`Infringement
`
`Plaintiffs allege that Defendant
`
`infringed on Plaintiffs’ copyrights by performing
`
`unlicensed versions of Annie as part of its spring and summer theater camps in 2016 and 2018.
`
`(Compl.
`
`‘11 24—25). Further, Plaintiffs allege that Defendant advertised and promoted
`
`performances of Annie, Mamma Mia!, and Hairspray for the summer of 2018. (Compl. 'll 32).
`
`Plaintiffs maintain that Defendant did not obtain a performance license or pay a licensing fee for
`
`the right to present such productions. (Compl. 11 33). Therefore, Defendant’s conduct constitutes
`
`copyright
`
`infringement because Defendant publicly performed and promoted future
`
`performances of Plaintiffs’ copyrighted material without authorization. The undersigned
`
`Magistrate Judge finds that Defendant infringed on Plaintiffs’ copyrights.
`
`
`3. Willful
`
`Plaintiffs allege that Defendant’s infringing conduct was willful because Defendant was
`
`aware of Plaintiffs’ copyrights. (Dkt. No. 12 at 9). An infringement is willful if the defendant has
`
`actual knowledge of the infringement and disregards the copyright owner’s rights. Lyons P ’ship,
`
`L.P. v. Morris Costumes, Inc, 243 F.3d 789, 799 (4th Cir. 2001). “[E]vidence that notice has
`
`been accorded to the defendants before the specific facts found to have constituted infringement
`
`occurred is perhaps the most persuasive evidence of willfulness.” Superior Form Builders. Inc,
`
`74 F.3d at 496. Here, Defendant’s infringement was willful because it had actual knowledge of
`
`the infringement and disregarded Plaintiffs’ copyrights.
`
`
`
`Case 1:18-cv-00650-TSE-IDD Document 17 Filed 12/07/18 Page 9 of 14 PageID# 487
`Case 1:18-cv-00650-TSE-IDD Document 17 Filed 12/07/18 Page 9 of 14 PagelD# 487
`
`Defendant had actual knowledge of the copyright infringement because not only did
`
`Defendant reply to Plaintiffs’ first notice on January 12, 2015, but it also recently commented on
`
`the pending lawsuit to the media and Defendant’s clients. In Defendant’s reply e-mail (“Reply E-
`
`mail”) to Plaintiffs’ January 12, 2015 notice, Ms. Walker stated, “[w]e had no idea that this is
`
`illegal,” and that Defendant would pay the outstanding amount due for Mary Poppins. (Compl.
`
`Ex. R). Years later, even though Plaintiffs received no response after the Reply E-mail, Ms.
`
`Walker told Loudoun County reporters that she is “in talks with the [Plaintiffs],” and “she has
`
`been working with MTI’s attorneys for several weeks to resolve the issue.” (Dkt. No. 16 Ex. A,
`
`B). Those statements are untrue. In Ms. Walker’s recent e—mail to her community, she admitted
`
`that Defendant is being sued. (Dkt. No. 16 Ex. C). As early as January 12, 2015, Defendant was
`
`aware of Plaintiffs’ copyrights and that it was infringing on those rights. Defendant disregarded
`
`those rights and continued to perform and advertise copyrighted material. Thus, the undersigned
`
`Magistrate Judge finds that Defendant willfully infringed on Plaintiffs’ protected works.
`
`IV. REQUESTED RELIEF
`
`Plaintiffs request relief for willful copyright
`
`infringement. (Compl.
`
`1] 42). Plaintiffs
`
`request the maximum statutory relief for the registered copyrighted works of Annie, Mama Mia!,
`
`and Hairspray, as well as a permanent injunction to prevent further infringement and irreparable
`
`harm of Plaintiffs’ copyrights and Plaintiffs themselves. (Dkt. No. 12, at 10). Plaintiffs also
`
`request attorney’s fees and costs. (Id).
`
`A.
`
`Statutory Damages
`
`Under
`
`the Copyright Act, Plaintiffs may recover
`
`statutory damages for willful
`
`infringement in an amount between $750 and $150,000 “for any one work.
`
`.
`
`.
`
`.” 17 U.S.C. §
`
`504(c)(1)—(2). In the instant action, Plaintiffs have elected to pursue the maximum statutory
`
`
`
`Case 1:18-cv-00650-TSE-IDD Document 17 Filed 12/07/18 Page 10 of 14 PageID# 488
`Case 1:18-cv-00650-TSE-IDD Document 17 Filed 12/07/18 Page 10 of 14 PagelD# 488
`
`award for willfiil infringement. (Dkt. No. 12, at 10). As the Court previously found Defendant’s
`
`acts were willful, Plaintiffs are entitled to a statutory award for willful infringement.
`
`Courts in the Fourth Circuit have wide discretion in determining the appropriate statutory
`
`award, particularly where the infringement is willful. Graduate Mgmt. Admission Council v. Lei
`
`Shi, No. 1:07cv605 (LMB/BRP), 2008 US. Dist. LEXIS 1621, at *3 (ED. Va. Jan. 7, 2008). In
`
`determining the appropriate statutory award, courts consider deterrence of the wrongful conduct.
`
`See F. W. Woolworth Co. v. Contemporary Arts, 344 US. 228, 233 (1952) (“The statutory rule .
`
`.
`
`. is designed to discourage wrongful conduct”). Courts also consider evidence of the following:
`
`a history of copyright
`
`infringement; whether defendants are impervious to deterrence or
`
`rehabilitation; defendant’s knowledge of copyright laws, any misleading or false statements; or
`
`evidence that defendants knew of their infringing conduct and disregarded the copyright owner’s
`
`rights. Superior Form Builders, Inc., 74 F.3d at 496. Here, as expressed above, Defendant had
`
`actual knowledge of its infringing conduct and disregarded Plaintiffs’ exclusive rights. Instead of
`
`attempting to resolve the issue, Defendant continued to advertise and promote Plaintiffs’
`
`copyrighted works.
`
`(Compl.
`
`fil 32).
`
`In addition, Defendant essentially ignored Plaintiffs’
`
`numerous notices of infringement. Defendant also provided misleading and false statements to
`
`Loudoun County newspapers concerning its efforts to resolve the issue with Plaintiffs. The
`
`complete disregard of Plaintiffs’ copyright rights supports a significant monetary award to deter
`
`Defendant’s infringing conduct in the future. Accordingly, the undersigned Magistrate Judge
`
`finds Defendant liable for the maximum statutory award for Annie, Mama Mia!, and Hairspray,
`
`in the amount of $450,000.
`
`10
`
`
`
`Case 1:18-cv-00650-TSE-IDD Document 17 Filed 12/07/18 Page 11 of 14 PageID# 489
`Case 1:18-cv-OO650-TSE-IDD Document 17 Filed 12/07/18 Page 11 of 14 Page|D# 489
`
`B.
`
`Permanent Injunction
`
`This Court has jurisdiction under the Copyright Act to grant a permanent injunction. 17
`
`U.S.C. § 502(a). For a court to grant a permanent injunction, the plaintiff must satisfy the four-
`
`factor test by demonstrating that: (1) it suffered an irreparable injury; (2) monetary damages are
`
`inadequate; (3) the balance of hardships favor the injunction; and (4) the public interest is not
`
`disserved by the injunction. eBay Inc. v. MercExchange, L.L.C., 547 US. 388, 391 (2006). The
`
`decision to grant or deny a permanent injunction is within the “equitable discretion” of the court.
`
`Id.
`
`1.
`
`Irreparable Injm and Adequacy of Moneta_ry Damages
`
`Irreparable injury is often a natural consequence of copyright infringement and it merges
`
`with the inquiry of whether legal remedies are adequate. Tattoo Art, Inc. v. TAT Int ’1, LLC, 794
`
`F. Supp. 2d 634, 660 (ED. Va. 2011) (internal citations omitted); see Christopher Phelps &
`
`Assocs. v. Galloway, 492 F.3d 532, 544 (4th Cir. 2007) (stating that irreparable injury can result
`
`from the fact
`
`that monetary damages are difficult
`
`to calculate). Defendant completely
`
`disregarded Plaintiffs’ copyrights through its continuous advertisements and promotions of
`
`Annie, Mama Mia!, and Hairspray despite numerous cease and desist letters. (Compl. W 27-29,
`
`31-32). Accordingly, Plaintiffs have suffered irreparable harm and monetary damages are
`
`inadequate.
`
`2. Balance of Hardships and Public Interest
`
`Plaintiffs have been irreparably harmed by Defendant’s copyright
`
`infringements and
`
`monetary damages are insufficient to compensate for the injury; Defendant’s unlawful conduct,
`
`on the other hand, garners no support. See Splitfish AG v. Bannco Corp, 727 F. Supp. 2d 461,
`
`468 (ED. Va. 2010) (finding that the balance of hardships was in plaintiff’s favor even though
`
`11
`
`
`
`Case 1:18-cv-00650-TSE-IDD Document 17 Filed 12/07/18 Page 12 of 14 PageID# 490
`Case 1:18-cv-00650-TSE-IDD Document 17 Filed 12/07/18 Page 12 of 14 Page|D# 490
`
`an injunction would destroy defendants’ business). Accordingly, the balance of hardships favors
`
`the injunction, particularly in a case like the one at bar where Defendant continues to infringe on
`
`protected work despite having received multiple notices.
`
`Public interest is also served by granting a permanent injunction. Under the Copyright
`
`Act, it is in the public interest to uphold the exclusive rights of the copyright owner. Splitfist AG,
`
`727 F. Supp. 2d at 469. Therefore,
`
`the public interest
`
`is not served by permitting further
`
`copyright infringement. Accordingly, the undersigned Magistrate Judge finds it appropriate to
`
`award a permanent injunction against Defendant.
`
`C.
`
`Attorney’s Fees
`
`The Copyright Act provides that
`
`the court may allow the recovery of reasonable
`
`attomey’s fees and costs. 17 U.S.C. § 505; see Robinson v. Equifax Info Serv., LLC, 560 F.3d
`
`235, 243 (4th Cir. 2009) (outlining a three step framework to calculate reasonable attorney’s
`
`fees). Plaintiffs request attomey’s fees in the amount of $70,759.72. (Dkt. No. 16 at 3-4). In
`
`support of its request, Plaintiffs submitted an affidavit of Edwin Komen, a partner at Sheppard,
`
`Mullin, Richter & Hampton, LLP, who is responsible for overseeing the billing of this case.
`
`(Dkt. No. 16). Although his affidavit details the work performed in connection with this case and
`
`states the hourly rate for the attorneys of record in the case, the attorneys of record did not
`
`submit their own affidavit indicating that their hourly rates coincide with the prevailing market
`
`rate in the relevant community. See Grissom v. Mills Corp, 549 F.3d 313, 321 (4th Cir. 2008)
`
`(“The fee applicant bears the burden of proving the reasonableness of the hours expended and
`
`the requested hourly rates, which generally requires submission of the attorney's own affidavit
`
`and timesheets as well as ‘satisfactory specific evidence of the prevailing market rates in the
`
`relevant community for the type of work for which [the attorney] seeks an award.” (quoting
`
`12
`
`
`
`Case 1:18-cv-00650-TSE-IDD Document 17 Filed 12/07/18 Page 13 of 14 PageID# 491
`Case 1:18-cv-OO650-TSE-IDD Document 17 Filed 12/07/18 Page 13 of 14 PagelD# 491
`
`Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990))); Crump v. United States Dep ’t of Navy, 245
`
`F.Supp. 3d 692, 699 (ED. Va. 2017) (pointing to the twelve factors outlined by Johnson v.
`
`Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) to determine whether the amount
`
`requested for attorney’s fees is a reasonable rate and reasonable number of hours expended).
`
`Without such information, the Court cannot make a reasonableness determination. Upon review
`
`of the affidavit and having insufficient evidence to determine the reasonableness of the amount
`
`of attorney’s fees requested,
`
`the undersigned recommends denying Plaintiffs’
`
`request for
`
`attorney’s fees. In the alternative, the undersigned recommends a reduction in the attorney’s fees
`
`to a range of $50,000 to $60,000.
`
`Plaintiff also requests costs of this litigation in the amount of $1,532.72. Based on the
`
`affidavit submitted, sufficient detail was provided as to how the amount was derived. (Dkt. No.
`
`16 Ex. 2 at 9). Therefore, the undersigned recommends awarding Plaintiffs’ costs.
`
`I.
`
`RECOMMENDATION
`
`The undersigned Magistrate Judge recommends entry of default judgment in favor of
`
`Plaintiffs and against Defendant for willful copyright infringement. Plaintiffs are entitled to a
`
`maximum statutory award for Annie, Mama Mia!, and Hairspray, in the amount of $450,000.
`
`Plaintiffs are also entitled to a permanent injunction, enjoining Defendant from further infringing
`
`on their exclusive copyrights and trademark rights. Due to insufficient support for attorney’s
`
`fees, Plaintiff is either not entitled to attorney’s fees or entitled to a reduction in the fees
`
`requested. The Plaintiffs, however, may recover costs in the amount of $1,532.72.
`
`11.
`
`NOTICE
`
`By mailing copies of this Report and Recommendation, the parties are notified as
`
`follows. Objections to this Report and Recommendation, pursuant to 28 U.S.C. § 636 and
`
`13
`
`
`
`Case 1:18-cv-00650-TSE-IDD Document 17 Filed 12/07/18 Page 14 of 14 PageID# 492
`Case 1:18-cv-00650-TSE-IDD Document 17 Filed 12/07/18 Page 14 of 14 Page|D# 492
`
`Rule 72(b) of the Federal Rules of Civil Procedure, must be filed within fourteen (14) days
`
`of service on you of this Report and Recommendation. A failure to file timely objections to
`
`this Report and Recommendation waives appellate review of the substance of the Report
`
`and Recommendation and waives appellate review of a judgment based on this Report and
`
`Recommendation.
`
`The Clerk is directed to send a copy ofthis Report and Recommendation to all counsel of
`
`record and to Defendants at the following addresses:
`
`Theatrepalooza Community Theater Productions, Inc.
`Teresa Walker
`
`1484 Gulfto Bay Blvd.
`Suite 14
`
`Clearwater, Florida 33755
`
`Theatrepalooza Community Theater Productions Inc.
`Teresa Walker
`
`44611 Guilford Drive
`
`#155
`
`Ashburn, Virginia 20147
`
`x/QQ (Q /s:I
`
`Ivan D. Davis
`
`United States Magistrate Judge
`
`December 7, 2018
`
`Alexandria, Virginia
`
`14
`
`