Case 2:22-cv-02809-KM-JRA Document 12 Filed 11/28/22 Page 1 of 8 PageID: 163
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
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`Civ. No. 22-2809 (KM) (JRA)
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`OPINION AND ORDER
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`MINDEN PICTURES, INC.,
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`Plaintiff,
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`v.
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`DENTISTRY TODAY, INC.,
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`Defendant.
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`KEVIN MCNULTY, U.S.D.J.:
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`This matter comes before the Court on the motion of the plaintiff, Minden
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`Pictures, Inc. (“Minden”), for a default judgment against the defendant,
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`Dentistry Today, Inc. (“Dentistry Today”), pursuant to Fed. R. Civ. P. 55(b)(2).
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`(DE 9.)1 This action arises from Dentistry Today’s alleged infringement of
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`copyrights to a photographic image, of which Minden is the exclusive licensee.
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`For the reasons expressed below, the motion is GRANTED.
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` SUMMARY
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`a. Factual Allegations
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`Minden is a provider of wildlife and nature stock photography.
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`(Compl. ¶ 7.) It licenses these works for editorial, advertising, corporate, and
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`non-profit use. (Compl. ¶ 8.) Minden is the exclusive licensee of the original
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`photographic image appended to the complaint (the “Copyrighted Work”) and
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`assisted the author in registering the work with the United States Copyright
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`Certain citations to the record are abbreviated as follows:
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`1
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`“DE” = docket entry number in this case
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`“Compl.” = Plaintiff’s Complaint and Jury Demand (DE 1)
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`“Mot.” = Memorandum of Law in Support of Plaintiff’s Motion for Default
`Judgment
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`Office. (Compl. ¶¶ 9-12, Exs. A, B.) Minden alleges that, on an unspecified
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`date, it discovered that Dentistry Today had reproduced, distributed and public
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`displayed the Copyrighted Work on its website without Minden’s
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`authorization.2 (Compl. ¶ 14.) Minden asserts that Dentistry Today’s conduct
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`amounts to knowing and willful infringement of Minden’s exclusive rights in
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`violation of the Copyright Act, 17 U.S.C. § 501. (Compl. ¶¶ 15, 20-21.)
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`b. Procedural History
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`On May 13, 2022, Minden filed its complaint against Dentistry Today
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`seeking, among other things, 1) a declaration that Dentistry Today willfully
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`infringed Minden’s copyrights, 2) an accounting of all revenue earned by
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`Dentistry Today during the period in which it reproduced, distributed, or
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`displayed the copyrighted work; 3) an award of “all gains, profits, property and
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`advantages derived by Defendant from their acts of copyright infringement,” or,
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`in lieu thereof, should Minden elect, statutory damages as provided in 17
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`U.S.C. § 504(c), and 4) a permanent injunction enjoining Dentistry Today from
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`directly or indirectly infringing upon Minden’s copyrights. Dentistry Today was
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`properly served on May 18, 2022, but failed to answer or otherwise respond to
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`the complaint. On June 21, 2022, the Clerk entered default. (Entry following
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`DE 8.) On August 19, 2022, Minden filed a motion for default judgment seeking
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`1) an order enjoining Dentistry Today from its acts of copyright infringement,
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`and 2) an award of $10,000 in statutory damages under 17 U.S.C. § 504(c),
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`plus attorney’s fees, costs, and post-judgment interest. On October 28, 2022, I
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`issued an order denying Minden’s motion as presented, without prejudice to
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`renewal, accompanied by the filing within 30 days of documents sufficient to
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`establish Minden's standing to sue. (DE 10.) On November 18, 2022, Minden
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`renewed its motion by letter, to which it attached its exclusive Agency
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`Agreement with the author of the Copyrighted Work (the “Agency Agreement”),
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`establishing its standing to bring the present action. (DE 11.)
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`Attached to Minden’s complaint is an image that appears to be a screenshot of
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`a page from Dentistry Today’s website featuring the Copyrighted Work. (Compl. Ex. C.)
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`2
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` DISCUSSION
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`a. Legal Standard
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`“[T]he entry of a default judgment is left primarily to the discretion of the
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`district court.” Hritz v. Woma Corp., 732 F.2d 1178, 1180 (3d Cir. 1984) (citing
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`Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 244 (3d Cir. 1951)).
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`Because the entry of a default judgment prevents the resolution of claims on
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`the merits, “this court does not favor entry of defaults and default judgments.”
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`United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 194 (3d Cir. 1984).
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`Thus, before entering default judgment, the Court must determine whether the
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`“unchallenged facts constitute a legitimate cause of action” so that default
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`judgment would be permissible. DirecTV, Inc. v. Asher, 2006 WL 680533, at *1
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`(D.N.J. Mar. 14, 2006) (citing Wright, Miller, Kane, 10A Fed. Prac. & P. Civil 3d
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`§ 2688, at 58–59, 63).
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`“[D]efendants are deemed to have admitted the factual allegations of the
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`Complaint by virtue of their default, except those factual allegations related to
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`the amount of damages.” Doe v. Simone, 2013 WL 3772532, at *2 (D.N.J. July
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`17, 2013). While “courts must accept the plaintiff’s well-pleaded factual
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`allegations as true,” they “need not accept the plaintiff’s factual allegations
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`regarding damages as true.” Id. (citing Chanel, Inc. v. Gordashevsky, 558 F.
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`Supp. 2d 532, 536 (D.N.J. 2008)). Moreover, if a court finds evidentiary
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`support to be lacking, it may order or permit a plaintiff seeking default
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`judgment to provide additional evidence in support of the allegations. Doe,
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`2013 WL 3772532, at *2.
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`b. Prerequisites for Entry of Default Judgment
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`Before a court may enter default judgment against a defendant, the
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`plaintiff must have properly served the summons and complaint, and the
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`defendant must have failed to file an answer or otherwise respond to the
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`complaint within the time provided by the Federal Rules, which is twenty-one
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`days. See Gold Kist, Inc. v. Laurinburg Oil Co., Inc., 756 F.2d 14, 18–19 (3d Cir.
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`1985); Fed. R. Civ. P. 12(a).
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`3
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`Here, the complaint was filed on May 13, 2022. (DE 1.) Dentistry Today
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`was properly served on May 18, 2022. (DE 6.) Dentistry Today failed to answer
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`or otherwise respond to the complaint by the deadline and the Clerk’s entry of
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`default was duly noted on June 21, 2022. Therefore, the prerequisites for
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`default have been satisfied
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`c. Three-Factor Analysis
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`After the prerequisites have been satisfied, a court must evaluate the
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`following three factors: “(1) whether the party subject to default has a
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`meritorious defense, (2) the prejudice suffered by the party seeking default, and
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`(3) the culpability of the party subject to default.” Doug Brady, Inc. v. N.J. Bldg.
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`Laborers Statewide Funds, 250 F.R.D. 171, 177 (D.N.J. 2008) (citing Emcasco
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`Ins. Co. v. Sambrick, 834 F.2d 71, 74 (3d Cir. 1987)). Those factors, considered
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`in light of the record of this case, weigh in favor of entry of a default judgment.
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`i. Factor One: Existence of a Meritorious Defense
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`As always, evaluation of the first factor is made difficult by the
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`defendant’s failure to answer or to oppose the motion for default judgment.
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`Nevertheless, my independent review of the record does not suggest that the
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`claims are legally flawed. Accepting the allegations in the Complaint as true,
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`Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990), I find that
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`Minden has successfully stated a claim for relief as against Dentistry Today.
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`To prevail on a claim of copyright infringement, Minden must 1) establish
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`ownership of a valid copyright, and 2) unauthorized copying of protectable
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`elements of the protected work. Winstead v. Jackson, 509 Fed. Appx. 139, 143
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`(3d Cir. 2013). Here, Minden has established that its Agency Agreement with
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`the author of the Copyrighted Work grants it standing to sue for copyright
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`infringement in the shoes of the copyright owner (see, e.g., Stockfood Am., Inc.
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`v. Adagio Teas, lnc.,475 F. Supp. 3d 394, 411 (D.N.J. 2020)),3 and the
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`3 Section 2 of the Agency Agreement, as amended in 2021, provides:
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`For the purposes of clarification, Photographer [i.e., the author of the
`Copyrighted Work] acknowledges, affirms, agrees, represents and
`warrants that the Agreement intended to grant Agency [i.e., Minden] all
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`4
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`screenshot it has submitted corroborates its allegation that that Dentistry
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`Today engaged in “unauthorized copying.” (See Agency Agreement; Compl. Ex.
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`B).
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`I find that the facts as alleged make out a cause of action for copyright
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`infringement.
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`ii. Factors Two and Three: Prejudice to Minden and
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`Dentistry Today’s Culpability
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`The second and third factors also weigh in favor of default.
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`Dentistry Today was properly served in May but failed to appear, defend,
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`or otherwise respond to the complaint. It is clear that Minden has been
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`prejudiced by this dereliction because it has been “prevented from prosecuting
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`their case, engaging in discovery, and seeking relief in the normal fashion.” See
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`Teamsters Pension Fund of Philadelphia & Vicinity v. Am. Helper, Inc., 2011 WL
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`rights needed to act as the exclusive agent and syndicator of the Images,
`in any and all formats and media, whether now known or hereafter
`devised. As such, Photographer acknowledges, affirms, agrees,
`represents and warrants that Photographer has granted, through the
`Agreement, and does hereby grant, for valuable and good consideration,
`including but not limited to the provisions of services herein, receipt of
`which is hereby acknowledged, Agency the exclusive right to sell,
`syndicate, license, market or otherwise distribute the Images for use and
`exploitation, including but not limited to reproduction, further
`distribution, and public display, in any and all media now known or
`hereafter developed for any purpose whatsoever in the Territory (as
`defined in the Agreement) and, among other things, the right and ability,
`but not obligation, to pursue any present and future claims and causes
`of action against third parties related to the Images and such exclusive
`rights and copyrights. Agency shall have full discretion regarding the
`terms and conditions of any license or sublicense it might grant in
`connection with the Images without the need for prior consultation with
`Photographer, except as provided in the Agreement. Agency shall have
`the right and ability, but not the obligation, to register said works in
`Photographer's name, subject to Agency's sole and exclusive discretion
`and determination. To the extent that the terms in this Paragraph are
`not already in the Agreement, the Agreement is hereby modified to
`incorporate expressly the terms of this Paragraph, which supersede
`anything to the contrary in the Agreement.
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`5
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`4729023, at *4 (D.N.J. Oct. 5, 2011) (find that a defendant’s failure to answer
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`prejudices the plaintiff); see also Gowan v. Cont’l Airlines, Inc., 2012 WL
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`2838924, at *2 (D.N.J. Jul. 9, 2012) (“[Plaintiff will suffer prejudice if the Court
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`does not enter default judgment as Plaintiff has no other means of seeking
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`damages for the harm caused by Defendant.”).
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`Additionally, absent any evidence to the contrary, “the Defendant’s
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`failure to answer evinces the Defendant’s culpability in default.” Teamsters
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`Pension Fund of Philadelphia & Vicinity, 2011 WL 4729023 at *4. In this case,
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`“there is nothing before the Court to show that the Defendant’s failure to file an
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`answer was not willfully negligent.” Id. (citing Prudential Ins. Co. of America v.
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`Taylor, 2009 WL 536043, at *1 (D.N.J. Feb. 27, 2009)) (finding that when there
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`is no evidence that the defendant’s failure to answer the complaint was due to
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`something other than its own willful negligence, the defendant’s conduct is
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`culpable and default judgment is warranted).
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`Overall, then, the three factors support the entry of default judgment.
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`d. Remedies
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`i. Statutory Damages
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`Minden elects statutory damages under 17 U.S.C. § 504(c)(1). (Mot. at 6.)
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`That section provides:
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`Except as provided by clause (2) of this subsection, the
`copyright owner may elect, at any time before final
`judgment is rendered, to recover, instead of actual
`damages and profits, an award of statutory damages
`for all infringements involved in the action, with
`respect to any one work, for which any one infringer is
`liable individually, or for which any two or more
`infringers are liable jointly and severally, in a sum of
`not less than $750 or more than $30,000 as the court
`considers just. For the purposes of this subsection, all
`the parts of a compilation or derivative work constitute
`one work.
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`17 U.S.C. § 504(c)(1). Minden asks for $10,000 in statutory damages,
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`conceding that this appears to be a case of “ordinary infringement,” as opposed
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`to “willful infringement” that could warrant an enhancement of damages up to
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`6
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`$150,000 under § 504(c)(2). I find this request to be reasonable under the
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`circumstances and will grant it accordingly. Minden is awarded statutory
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`damages of $10,000.
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`ii. Injunctive Relief
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`Minden requests an injunction against Dentistry Today, enjoining
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`Dentistry Today from its acts of copyright infringement. (Mot. at 1, 11.) “[T]he
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`Copyright Act provides that courts ‘may’ grant injunctive relief ‘on such terms
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`as it may deem reasonable to prevent or restrain infringement of a copyright.’”
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`eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 392 (2006) (quoting 17 U.S.C.
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`§ 502(a)). A plaintiff seeking a permanent injunction must demonstrate:
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`(1) that it has suffered an irreparable injury; (2) that
`remedies available at law, such as monetary damages,
`are inadequate to compensate for that injury; (3) that,
`considering the balance of hardships between the
`plaintiff and defendant, a remedy in equity is
`warranted; and (4) that the public interest would not
`be disserved by a permanent injunction.
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`Id. at 391; accord Coffelt v. Fawkes, 765 F.3d 197, 201 (3d Cir. 2014).
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`Minden has demonstrated all four prongs of the test. Minden has
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`suffered copyright infringement that may continue if Dentistry Today does not
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`discontinue its use of the Copyright Work and purge copies of it from its
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`possession. Further, there are no hardships to Dentistry Today in preventing it
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`from committing copyright infringement. Finally, preventing copyright
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`infringement would not disserve the public interest. Thus, a permanent
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`injunction is proper and Dentistry Today is ordered to discontinue its use of
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`the Copyrighted Work and destroy all unauthorized copies of the Copyrighted
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`Work in its possession.
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`iii. Attorney’s Fees and Costs
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`Minden also seeks an award of full costs and reasonable attorney’s fees.
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`Section 505 leaves an award of costs and reasonable attorney’s fees up to the
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`Court’s discretion. 17 U.S.C. § 505. I will grant Minden’s request. In
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`accordance with Local Civil Rules 54.1 and 54.2, Plaintiff shall file its
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`application for costs and attorney’s fees within 30 days of the entry of this
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`Order.
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`For the foregoing reasons,
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`IT IS this 28th day of November, 2022,
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`ORDER
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`ORDERED that the motion (DE 9) for default judgment is granted, and
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`the proposed default judgment will be entered against Dentistry Today, and in
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`favor of Minden, in a total amount of $10,000, plus post-judgment interest
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`pursuant to 28 U.S.C. §1961; and
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`IT IS FURTHER ORDERED that Dentistry Today is enjoined from
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`infringing on Minden copyrights and ordered to destroy all unauthorized copies
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`of the Copyrighted Work in its possession; and
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`IT IS FURTHER ORDERED that Minden is awarded reasonable attorney’s
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`fees and costs pursuant to 17 U.S.C. § 505 of an amount to be determined
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`upon separate application within 30 days of entry of this Order; and
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`IT IS FURTHER ORDERED that Minden shall submit, with its calculation
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`of costs and fees, a proposed form of Judgment.
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`/s/ Kevin McNulty
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`___________________________________
`Hon. Kevin McNulty
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`United States District Judge
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`8
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