Case 1:18-cv-00446-SEB-TAB Document 12 Filed 03/18/19 Page 1 of 7 PageID #: 106
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`INDIANAPOLIS DIVISION
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`RICHARD N. BELL,
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`
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`Plaintiff,
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`v.
`
`
`JERMAINE TURENTINE,
`
`No. 1:18-cv-00446-SEB-TAB
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`Defendant.
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`ORDER ON MOTION FOR DEFAULT JUDGMENT (DKT. 10)
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`On February 15, 2018, Plaintiff sued Defendant for infringement under the
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`Copyright Act, 17 U.S.C. § 101 et seq. Dkt. 1. Defendant failed to plead or otherwise
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`defend and the Clerk entered a default on August 13, 2018. Dkt. 9. See Fed. R. Civ. P.
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`55(a). Now before the Court is Plaintiff’s motion for default judgment. Dkt. 10. See Fed.
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`R. Civ. P. 55(b). The motion is granted in part.
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`Discussion
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`As the Seventh Circuit has explained in a recent case,
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`“There are two stages in a default proceeding: the
`establishment of the default, and the actual entry of a default
`judgment. Once the default is established, and thus liability,
`the plaintiff still must establish his entitlement to the relief he
`seeks.” In re Catt, 368 F.3d 789, 793 (7th Cir. 2004). This
`two-step process is clearly outlined in Rule 55(a) (entry of
`default) and Rule 55(b) (default judgment) of the Federal
`Rules of Civil Procedure. The basic effect of an entry of
`default (step one) is that “[u]pon default, the well-pleaded
`allegations of a complaint relating to liability are taken as
`true.” Dundee Cement Co. v. Howard Pipe & Concrete
`Prods., Inc., 722 F.2d 1319, 1323 (7th Cir. 1983). . . . At the
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`1
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`
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`INDIANAPOLIS DIVISION
`
`
`RICHARD N. BELL,
`
`
`
`
`Plaintiff,
`
`v.
`
`
`JERMAINE TURENTINE,
`
`No. 1:18-cv-00446-SEB-TAB
`
`)
`)
`)
`)
`)
`)
`)
`
`)
`)
`)
`
`
`
`
`
`Defendant.
`
`ORDER ON MOTION FOR DEFAULT JUDGMENT (DKT. 10)
`
`On February 15, 2018, Plaintiff sued Defendant for infringement under the
`
`Copyright Act, 17 U.S.C. § 101 et seq. Dkt. 1. Defendant failed to plead or otherwise
`
`defend and the Clerk entered a default on August 13, 2018. Dkt. 9. See Fed. R. Civ. P.
`
`55(a). Now before the Court is Plaintiff’s motion for default judgment. Dkt. 10. See Fed.
`
`R. Civ. P. 55(b). The motion is granted in part.
`
`Discussion
`
`As the Seventh Circuit has explained in a recent case,
`
`“There are two stages in a default proceeding: the
`establishment of the default, and the actual entry of a default
`judgment. Once the default is established, and thus liability,
`the plaintiff still must establish his entitlement to the relief he
`seeks.” In re Catt, 368 F.3d 789, 793 (7th Cir. 2004). This
`two-step process is clearly outlined in Rule 55(a) (entry of
`default) and Rule 55(b) (default judgment) of the Federal
`Rules of Civil Procedure. The basic effect of an entry of
`default (step one) is that “[u]pon default, the well-pleaded
`allegations of a complaint relating to liability are taken as
`true.” Dundee Cement Co. v. Howard Pipe & Concrete
`Prods., Inc., 722 F.2d 1319, 1323 (7th Cir. 1983). . . . At the
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`1
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`
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`Case 1:18-cv-00446-SEB-TAB Document 12 Filed 03/18/19 Page 2 of 7 PageID #: 107
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`same time, however, the entry of default “does not of itself
`determine rights.” United States v. Borchardt, 470 F.2d 257,
`260 (7th Cir. 1972). That role is reserved for a default
`judgment.
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`VLM Food Trading Int’l, Inc. v. Ill. Trading Co., 811 F.3d 247, 255 (7th Cir. 2016) (first
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`alteration omitted). Thus, “allegations regarding the amount of damages must be proven
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`because ‘even when a default judgment is warranted based on a party’s failure to defend,
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`the allegations in the complaint with respect to the amount of damages are not deemed
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`true.’” UMG Recordings, Inc. v. Stewart, 461 F. Supp. 2d 837, 842 (S.D. Ill. 2006) (first
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`alteration omitted) (quoting Catt, 386 F.3d at 793).
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`I. Liability
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`“As an initial matter the Court must determine whether Plaintiff[] ha[s] established
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`a prima facie case as to liability for copyright infringement.” Id. “‘Plaintiff[] must satisfy
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`two requirements to present a prima facie case of direct copyright infringement: (1) [he]
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`must show ownership of the allegedly infringed material and (2) [he] must demonstrate
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`that the alleged infringers violate at least one exclusive right granted to copyright holders
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`under 17 U.S.C. § 106.’” Id. (alteration omitted) (quoting A & M Records, Inc. v.
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`Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001)).
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`The complaint before us alleges that Plaintiff took a photograph of the
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`Indianapolis, Indiana, skyline in March 2000. Compl. ¶ 7. “[C]opyright protection begins
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`at the moment of creation of ‘original works of authorship fixed in any tangible medium
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`of expression[.]’” JCW Invs., Inc. v. Novelty, Inc., 482 F.3d 910, 914 (7th Cir. 2007)
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`(quoting 17 U.S.C. § 102(a)). Accordingly, Plaintiff has satisfied the first legal element.
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`2
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`Case 1:18-cv-00446-SEB-TAB Document 12 Filed 03/18/19 Page 3 of 7 PageID #: 108
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`The complaint alleges further that Plaintiff uploaded a copy of his photograph to the
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`Internet in August 2000, Compl. ¶ 10, and that, some time before November 2017,
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`Defendant downloaded a copy of the photograph from the Internet without Plaintiff’s
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`permission and used the copy in public advertisements for Defendant’s business. Id. ¶
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`14–17. The Copyright Act vests the exclusive right in a copyright holder “to reproduce
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`the copyrighted work in copies . . . .” 17 U.S.C. § 106(1). Accordingly, Plaintiff has
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`satisfied the second legal element.
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`Liability having been established, we proceed to consider Plaintiff’s appropriate
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`remedies.
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`II. Remedies
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`Plaintiff seeks damages, costs, a permanent injunction, and a declaratory
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`judgment. Compl., at 8–9.
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`A. Damages
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`The Copyright Act permits a plaintiff to elect statutory damages in lieu of actual
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`damages. 17 U.S.C. § 504(a), (c). Plaintiff here has so elected. Br. Supp. 9 (citing Pl.’s
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`Decl. ¶ 9). Accordingly, the Court may award “a sum of not less than $750 or more than
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`$30,000 as the court considers just.” 17 U.S.C. § 504(c)(1). Here, the minimum award of
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`$750 is just, considering that the protected matter is a grainy, nineteen-year-old
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`photograph that Plaintiff himself released into the world by uploading it to a public
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`website without a watermark or other identifying mark, see Dkt. 11 Ex. 3 (work in suit),
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`and waiting eleven years before applying for copyright registration. Compl. ¶ 11.
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`3
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`
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`Case 1:18-cv-00446-SEB-TAB Document 12 Filed 03/18/19 Page 4 of 7 PageID #: 109
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`Plaintiff’s complaint alleges that the infringement here was willful, Compl. ¶ 19,
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`and the Copyright Act permits enhanced statutory damages up to a maximum of
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`$150,000 “[i]n a case where the copyright owner sustains the burden of proving, and the
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`court finds, that infringement was committed willfully[.]” 17 U.S.C. § 504(c)(2). But, as
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`previously noted, damages allegations are not deemed true on a motion for default
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`judgment, UMG Recordings, 461 F. Supp. 2d at 842, and Plaintiff has not otherwise
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`sustained his burden of proof on the issue of willfulness.
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`Plaintiff’s only evidence is what appears to be a print-out of the home page of
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`Defendant’s business’s website. Dkt. 11 Ex. 4. The print-out shows the work in suit at the
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`lower right-hand corner unmarked and otherwise unidentified. Id. Plaintiff contends that
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`“Defendant recklessly, willfully and falsely asserted that . . . Defendant owned the
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`copyrights of all content, images and photos contained in . . . Defendant’s website . . . by
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`adding www.jteamz.com below” the work in suit. Br. Supp. 8. But the
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`“www.jteamz.com” notation appearing at the bottom of the print-out is clearly part of the
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`footer created when Plaintiff printed the webpage, like the “[page] 1/8” notation
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`appearing next to it. Dkt. 11 Ex. 4. This “evidence” is therefore entirely irrelevant and as
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`such unpersuasive.
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`B. Costs
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`“[T]he court in its discretion may allow the recovery of full costs by or against any
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`party . . . .” 17 U.S.C. § 505. “‘Traditionally, although not required to do so, courts
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`routinely award costs to the prevailing party in copyright cases.’” UMG Recordings, 461
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`F. Supp. 2d at 845 (nested quotation marks omitted) (quoting Arclightz & Films Pvt. Ltd.
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`4
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`
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`Case 1:18-cv-00446-SEB-TAB Document 12 Filed 03/18/19 Page 5 of 7 PageID #: 110
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`v. Video Palace Inc., 303 F. Supp. 2d 356, 365 (S.D.N.Y. 2003)). Here, Plaintiff has
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`reportedly incurred costs totaling $472.92, including the $400 filing fee and $72.92
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`service costs. Pl.’s Decl. ¶ 9. Accordingly, Plaintiff is entitled to a reimbursement of
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`those expenditures and thus shall be awarded an additional $472.92.
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`C. Permanent Injunction
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`“Any court having jurisdiction . . . may . . . grant . . . final injunctions on such
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`terms as it may deem reasonable to prevent or restrain infringement of a copyright.” 17
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`U.S.C. § 502(a). “Although ‘the issuance of an injunction is in the discretion of the court,
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`courts have traditionally granted permanent injunctions if liability is established and a
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`continuing threat to a copyright exists.’” UMG Recordings, 461 F. Supp. 2d at 8444
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`(quoting Jobete Music Co. v. Johnson Commc’ns, Inc., 285 F. Supp. 2d 1077, 1092 (S.D.
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`Ohio 2003)).
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`Here, Plaintiff has established no continuing threat to his copyright from
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`Defendant. The Court takes judicial notice, Fed. R. Evid. 202(b)(2), (c)(1), that
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`Defendant’s “www.jteamz.com” website is no longer live. And Plaintiff’s argument on
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`this point is incomprehensible: “Injunctive relief, therefore, is necessary to prevent future
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`harm, which would be irreparable, as the test questions would be unusable once they
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`were published.” Br. Supp. 11. Accordingly, Plaintiff we withhold injunctive relief.
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`D. Declaratory Judgment
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`“The Declaratory Judgment Act . . . authorizes a federal court, ‘[i]n a case of
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`actual controversy within its jurisdiction,’ to ‘declare the rights and other legal relations
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`of any interested party seeking such declaration.’” Klinger v. Conan Doyle Estate, Ltd.,
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`5
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`
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`Case 1:18-cv-00446-SEB-TAB Document 12 Filed 03/18/19 Page 6 of 7 PageID #: 111
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`988 F. Supp. 2d 879, 886 (N.D. Ill. 2013) (quoting 28 U.S.C. § 2201(a)). The remedy is
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`discretionary. Tempco Elec. Heater Corp. v. Omega Eng’g, Inc., 819 F.2d 746, 747 (7th
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`Cir. 1987) (citations omitted). Declaratory judgments “serve no useful purpose” where a
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`plaintiff has already successfully invoked his rights to a coercive remedy such as
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`damages. Id. at 749. (citations omitted).
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`Because Plaintiff has shown an entitlement to damages for infringement, a
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`declaration of infringement would serve no useful purpose. Accordingly, Plaintiff’s
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`request for a declaratory judgment is denied.
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`Conclusion and Order
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`For the reasons given above:
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`Plaintiff’s motion for default judgment, Dkt. 10, is GRANTED IN PART and
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`DENIED IN PART.
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`Defendant is ORDERED to pay Plaintiff $750 damages and $472.92 costs,
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`totaling $1,222.92.
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`Plaintiff’s request for a permanent injunction is DENIED.
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`Plaintiff’s request for a declaratory judgment is DENIED.
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`Final judgment will enter by separate document. Fed. R. Civ. P. 58(a).
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`IT IS SO ORDERED.
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`Date:
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`6
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`3/18/2019
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`_______________________________
`SARAH EVANS BARKER, JUDGE
`United States District Court
` Southern District of Indiana
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`
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`Case 1:18-cv-00446-SEB-TAB Document 12 Filed 03/18/19 Page 7 of 7 PageID #: 112
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`Distribution:
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`Richard N. Bell
`BELL LAW FIRM
`richbell@comcast.net
`
`JERMAINE TURENTINE
`7375 Mariner Way Apt 213,
`Indianapolis, IN 46214
`
`7
`
`
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