Case 8:11-cv-01776-AW Document 50 Filed 02/09/12 Page 1 of 8
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
`SOUTHERN DIVISION
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`Civil Action No. 11-cv-01776-AW
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`PATRICK COLLINS, INC.,
`Plaintiff,
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`v.
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`WILLIAM GILLISPIE, et al.,
`Defendants.
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`Memorandum Opinion
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`Presently pending before the Court is Plaintiff’s Motion for Default Judgment against
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`Defendants William Gillispie and Ivory Good, pursuant to Federal Rule of Civil Procedure
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`55(b)(2). Doc. No. 49. Defendants were properly served on December 17, 2011, see Doc. Nos.
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`41, 42, and failed to plead or otherwise defend as directed in the Summons and as provided by
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`the Federal Rules of Civil Procedure. The Clerk of the Court thereafter issued Orders of Default
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`as to Defendants. See Doc. Nos. 45, 46. The issues have been fully briefed and the Court now
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`rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that
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`follow, the Court DENIES Plaintiff’s Motion at this time, providing Plaintiff ten days to correct
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`deficiencies regarding registration of its copyright and request for attorney’s fees. Upon
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`submission of the requested materials, the Court will reconsider Plaintiff’s Motion.
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`I.
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`BACKGROUND
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`On June 28, 2011, Plaintiff brought this action for copyright infringement in violation of
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`17 U.S.C. §§ 106 and 501, seeking statutory damages, permanent injunctive relief, and attorney’s
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`fees and costs, pursuant to 17 U.S.C. §§ 502–505. See Compl. ¶¶ 2, 61. On or about March 25,
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`Case 8:11-cv-01776-AW Document 50 Filed 02/09/12 Page 2 of 8
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`2011, Plaintiff filed an application for a United States copyright and exclusive rights to the
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`motion picture “Anal Fanatic 2.” Compl. ¶¶ 11-12; Doc. No. 1 Ex. 2. To date, Plaintiff has
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`provided the Court with no proof that Anal Fanatic 2 has been successfully registered; nor does
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`Plaintiff allege in its Complaint that its motion picture is registered.1
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`The Complaint and attached documents allege that on April 14, 2011, Defendants,
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`without Plaintiff’s permission or consent, began using BitTorrent to upload and download
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`Plaintiff’s “copyrighted” motion picture. Compl. ¶¶ 28-29; Doc. No. 1 Ex. 1. Additionally,
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`Plaintiff alleges that Defendants have used BitTorrent to pass along the “copyrighted” file to
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`others and have continued to distribute the “copyrighted” work. Compl. ¶¶ 33, 35. As such,
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`Defendants have infringed on Plaintiff’s exclusive rights to reproduce and distribute the
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`copyrighted motion picture, and by virtue of the BitTorrent system, will continue such
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`infringement. Plaintiff contends that Defendants’ infringement was committed “willfully” within
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`the meaning of 17 U.S.C. § 504(c)(2). Compl. ¶ 50.
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`In its Motion for Default Judgment, Plaintiff seeks: (1) statutory damages pursuant to 17
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`U.S.C. § 504(c) in an amount of $30,000 per Defendant; (2) costs and attorney’s fees pursuant to
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`17 U.S.C. § 505 in the amount of $2,167; and (3) injunctive relief pursuant to 17 U.S.C. §§ 502
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`and 503 prohibiting Defendants from further infringing on Plaintiff’s alleged rights in the motion
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`picture and ordering Defendants to destroy all copies of the motion picture that Defendants have
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`downloaded or transferred onto any device within their possession or control. See Doc. No. 49.
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`II.
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`STANDARD OF REVIEW
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`1To the extent that Plaintiff suggests its work is registered, see Compl. ¶ 13, such allegation conflicts with its
`allegation that it has merely applied for registration and that “registration is expected within three to four months”,
`see Compl. ¶ 12.
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`2
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`Case 8:11-cv-01776-AW Document 50 Filed 02/09/12 Page 3 of 8
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`Pursuant to Fed. R. Civ. P. 55(b)(1), “[w]hen a party against whom a judgment for
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`affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by
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`affidavit or otherwise, the clerk must enter the party’s default.” A defendant’s default does not
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`automatically entitle the plaintiff to entry of a default judgment; rather, that decision is left to the
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`discretion of the court. See Dow v. Jones, 232 F. Supp. 2d 491, 494 (D. Md. 2002). The Fourth
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`Circuit has a “strong policy” that “cases be decided on the merits,” Dow, 232 F. Supp. 2d at 494
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`(citing United States v. Shaffer Equip. Co., 11 F.3d 450, 453 (4th Cir. 1993)), but default
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`judgment may be appropriate where a party is unresponsive. See S.E.C. v. Lawbaugh, 359 F.
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`Supp. 2d 418, 421 (D. Md. 2005) (citing Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980)).
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`Upon entry of default, the well-pled allegations in a complaint as to liability are taken as
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`true, but the allegations as to damages are not. Lawbaugh, 359 F. Supp. 2d at 422. Federal Rule
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`of Civil Procedure 54(c) limits the type of judgment that may be entered based on a party’s
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`default: “A default judgment must not differ in kind from, or exceed in amount, what is
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`demanded in the pleadings.” Thus, where a complaint specifies the amount of damages sought,
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`the plaintiff is limited to entry of a default judgment in that amount. “[C]ourts have generally
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`held that a default judgment cannot award additional damages … because the defendant could
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`not reasonably have expected that his damages would exceed that amount. In re Genesys Data
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`Tech., Inc., 204 F.3d 124, 132 (4th Cir. 2000). Where a complaint does not specify an amount,
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`“the court is required to make an independent determination of the sum to be awarded.” Adkins v.
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`Teseo, 180 F. Supp. 2d 15, 17 (D.D.C. 2001) (citing S.E.C. v. Mgmt. Dynamics, Inc., 515 F.2d
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`801, 814 (2d Cir. 1975); Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir.1981)).
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`While the court may hold a hearing to prove damages, it is not required to do so; it may
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`rely instead on “detailed affidavits or documentary evidence to determine the appropriate sum.”
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`Case 8:11-cv-01776-AW Document 50 Filed 02/09/12 Page 4 of 8
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`Adkins, 180 F. Supp. 2d at 17 (citing United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th
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`Cir. 1979)); see also Laborers' Dist. Council Pension v. E.G.S., Inc., Civ. No. WDQ-09-3174,
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`2010 WL 1568595, at *3 (D. Md. Apr.16, 2010) (“on default judgment, the Court may only
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`award damages without a hearing if the record supports the damages requested”).
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`III. ANALYSIS
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`A.
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`Liability for Copyright Infringement
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`In order to establish copyright infringement, a plaintiff must show: (1) ownership of the
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`copyright, and (2) copying by the alleged defendant. See Bouchat v. Baltimore Ravens, Inc., 241
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`F.3d 350, 358 (4th Cir. 2000). Plaintiff alleges that it has filed an application to register its motion
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`picture and has attached to its Complaint a screen shot of such application. See Compl. ¶¶ 11-12;
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`Doc. No. 1 Ex. 2. 17 U.S.C. § 411(a) provides that “no civil action for infringement of a
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`copyright in any United States work shall be instituted until preregistration or registration of the
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`copyright claim has been made in accordance with this title.” Mere application for a copyright
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`does not qualify as either registration or preregistration under § 411(a).
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`The Court recently addressed this issue in another case brought by Plaintiff. In Collins v.
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`Does 1-22, this Court considered a Motion to Quash by a John Doe contending that Plaintiff’s
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`copyright had not yet been successfully registered. See Civ. No. 11-cv-01772-AW, 2011 WL
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`5439005, at *2 (D. Md. Nov. 8, 2011). The Court found that Plaintiff had adequately stated a
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`claim for copyright infringement even though its copyright registration was still pending,
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`reasoning that:
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`[t]he Supreme Court has … recently held that registration of a copyright is not
`necessary to bring a copyright infringement claim in federal court. See Reed
`Elsevier, Inc. v. Muchnick, 130 S.Ct. 1237, 1246 (2010) (“Federal district courts
`have subject-matter jurisdiction over copyright infringement actions based on 28
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`Case 8:11-cv-01776-AW Document 50 Filed 02/09/12 Page 5 of 8
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`U.S.C. §§ 1331 and 1338. But neither § 1331, which confers subject-matter
`jurisdiction over questions of federal law, nor § 1338(a), which is specific to
`copyright claims, conditions its jurisdictional grant on whether copyright holders
`have registered their works before suing for infringement.”). Subsequently, at
`least one court in the Fourth Circuit considering the impact of this decision has
`found that it has subject matter jurisdiction over a plaintiff’s copyright
`infringement claims for both registered and unregistered images. See Tattoo Art,
`Inc. v. TAT Int’l, LLC, Civ. No. 2:10cv323, 2011 WL 2585376, at *11 (E.D. Va.
`June 29, 2011).
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`Thus, Plaintiff’s claim for copyright infringement is properly before the Court under
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`Id.
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`Muchnick—i.e., the Court has subject matter jurisdiction to hear this case—even though Plaintiff
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`has not provided proof of registration. However, the mere grant of subject matter jurisdiction
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`should not be understood as an entitlement to statutory damages for infringement of an
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`unregistered work. Courts within the Fourth Circuit have held that a Plaintiff cannot collect
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`statutory or actual damages for copyright infringement where it has offered no proof of
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`registration. See, e.g., Tattoo Art, 794 F. Supp. 2d at 654-57. Specifically, the Court in Tattoo Art
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`held that:
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`Although it is true that a plaintiff may recover actual damages for infringements
`that occurred prior to registration of the infringed work or works, such a recovery
`may not be sought by filing a lawsuit, let alone actually recovered in such a
`lawsuit, until the infringed works are registered or preregistered. 17 U.S.C. §
`411(a). In other words, infringement prior to registration still constitutes
`infringement, and can still merit an eventual recovery, but such recovery cannot
`be sought in a lawsuit until after registration or preregistration of the infringed
`works.
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`Id. at 657 (citations omitted).
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`Accordingly, Plaintiff will not be able to recover from Defendants unless it can show a
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`valid registration of its motion picture. Plaintiff has sufficiently made out a copyright
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`infringement claim in all other respects: it has alleged that Defendants illegally downloaded and
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`Case 8:11-cv-01776-AW Document 50 Filed 02/09/12 Page 6 of 8
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`uploaded the copyrighted motion picture, thereby copying Plaintiff’s work. Compl. ¶¶ 33-35.
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`Because upon entry of default, the well-pleaded allegations in a complaint are taken as true,
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`Plaintiff will have established Defendants’ liability for copyright infringement by default,
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`assuming it can show a valid registration of the motion picture. See Ryan v. Homecomings Fin.
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`Network, 253 F.3d 778, 780 (4th Cir. 2001).
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`Because Plaintiff has alleged that it expected to obtain registration of Anal Fanatic 2 back
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`in June or July of 2011, the Court will withhold judgment as to statutory damages and allow
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`Plaintiff ten days from the date of the accompanying Order in which to submit proof of valid
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`registration.
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`B.
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`Attorney’s Fees and Costs
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`Plaintiff seeks attorney’s fees in the amount of $1,492 and costs in the amount of $675,
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`pursuant to 17 U.S.C. §505. Section 505 provides that “the court in its discretion may allow the
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`recovery of full costs by or against any party … the court may also award a reasonable attorney’s
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`fee to the prevailing party as part of the costs.” 17 U.S.C. §505; see also Fogerty v. Fantasy, Inc.,
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`510 U.S. 517, 519 (1994). In support of Plaintiff’s request, it has submitted the Declaration of
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`Jon A. Hoppe, Esquire, which provides a sufficiently thorough breakdown of the costs incurred
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`in this action. Doc. No. 49 Ex. 2 at 2. However, in regard to attorney’s fees, the Declaration
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`states only that “Plaintiff has incurred attorneys’ fees in this case in the amount of $1,492.00.”
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`Doc. No. 49 Ex. 2 at 2.
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`In a similar action brought by the same Plaintiff, the Court has granted Plaintiff’s request
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`for attorney’s fees of $500. See Collins v. Sangster, Civ. No. 11-cv-01773-AW (D. Md. Feb. 8,
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`2012).2 The Court found the amount of $500 to be objectively reasonable given the length of the
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`matter and the nature of these “John Doe” actions.
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`In this nearly identical action, however, Plaintiff is requesting nearly three times the
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`amount of attorney’s fees and has provided no time records, billing rates, or other evidence to
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`explain the discrepancy. The Court will consider awarding Plaintiff its attorney’s fees only if,
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`within ten days of the accompanying Order, Plaintiff submits to the Court an affidavit
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`delineating counsel’s billing rates and time spent on this matter as well as the billing rates of any
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`associates or paralegals who might have worked on this matter. Plaintiff must establish that the
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`rates charged in this matter are comparable to those charged by other attorneys in this locality
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`with similar experience, skill, and reputation.
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`Additionally, although the Court is satisfied with the information submitted by Plaintiff
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`in regard to costs, the Court declines to award costs in this matter unless or until Plaintiff
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`produces a valid registration for its motion picture.
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`C.
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`Permanent Injunction
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`Finally, Plaintiff seeks a permanent injunction against Defendants pursuant to 17 U.S.C.
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`§§ 502 and 503. Specifically, Plaintiff seeks to enjoin Defendants from directly, contributorily or
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`indirectly infringing Plaintiff’s rights in its motion picture, including by using the internet,
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`BitTorrent, or any other online media distribution system to download or distribute the motion
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`picture, or by making the motion picture available for distribution to the public without the
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`authorization of Plaintiff. See Doc. No. 49 Ex. 3 at 3. Additionally, Plaintiff seeks a court order
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`directing Defendants to destroy all copies of Plaintiff’s motion picture that Defendants have
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`downloaded onto any computer hard drive or server without Plaintiff authorization, or
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`2Plaintiff can expect this decision to be reflected on the docket by the end of the week, or by February 10, 2012.
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`Case 8:11-cv-01776-AW Document 50 Filed 02/09/12 Page 8 of 8
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`transferred onto any physical medium or device in Defendants’ possession, custody, or control.
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`Id.
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`The Supreme Court in Muchnick did not consider whether injunctive relief is available
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`for unregistered works, and the Fourth Circuit has not considered the issue post-Muchnick. The
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`only Court within the Fourth Circuit to address the issue found that granting an injunction was
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`proper “in light of the fact that at least some of plaintiff’s [works] were registered … [.]” Tattoo
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`Art, 794 F. Supp. 2d at 662-63. The only work upon which Plaintiff claims infringement in the
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`instant action, Anal Fanatic 2, is, to the knowledge of the Court, not yet registered. The Court
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`will not grant a permanent injunction in the instant action unless Plaintiff can prove a valid
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`registration of the motion picture. Accordingly, the Court will await receipt of such proof by
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`Plaintiff within the next ten days.
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`IV. CONCLUSION
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`For the foregoing reasons, Plaintiff’s Motion for Default Judgment is denied at this time.
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` /s/
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`Alexander Williams, Jr.
`United States District Judge
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`A separate Order will follow.
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`February 8, 2012
` Date
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