Michael Grecco Productions, Inc. v. The New York Performing Arts Academy, Inc.

Background

Michael Grecco Productions, Inc. owns a photograph of actress Lucy Lawless as Xena the Warrior Princess, identified as “19970506_Xena_Lawless_Lucy_MGP_0023.” The plaintiff registered the photograph with the Register of Copyrights on August 29, 2017, under Registration No. VA 2-064-915.

The New York Performing Arts Academy, Inc. provides tuition-based programs in acting, theater, dance, and voice. The court found that the academy published the photograph on its website beginning August 25, 2021, without a license or permission. The plaintiff discovered the use on December 30, 2021, and sent an infringement notice and follow-up communications. The opinion states that the defendant did not respond before the lawsuit was filed and did not defend the case.

The Clerk entered default against the defendant. A default judgment is a judgment entered when a defendant fails to defend; the defendant’s failure generally means that well-pleaded factual allegations are treated as admitted. The court independently reviewed the plaintiff’s allegations and evidence before entering judgment.

Copyright Infringement and Willfulness

The court held that the plaintiff established the two elements of copyright infringement: ownership of a valid copyright and copying of original protected material. The registration certificate was issued more than five years after the photograph’s first publication, so the court stated that it did not automatically receive the statutory presumption of validity. Nevertheless, the certificate was sufficient evidence at this stage to establish the ownership element, and the defendant’s default prevented it from challenging the registration or ownership.

The website screenshots showed that the defendant copied and published a duplicate of the photograph. Because the defendant defaulted, the copying allegation was admitted. The court found no factual or subjective issue about substantial similarity because the defendant had copied the same image. It therefore entered default judgment against the defendant on the copyright-infringement claim.

The court also found the infringement willful and deliberate. It relied on the defendant’s default, its failure to respond to multiple communications, its failure to pay a reasonable licensing fee or negotiate a license, and a copyright notice appearing on the defendant’s website. The court concluded that the defendant had actual knowledge of the infringement or acted with reckless disregard for the plaintiff’s rights.

Damages, Fees, and Costs

The plaintiff could have sought actual damages, including the fair market value of a license. The court noted that a nearly identical photograph was offered for $5,440 per month for worldwide internet use and that the photograph appeared to have been used for at least four months, producing a proposed license value of $21,760. The court also noted that the defendant’s failure to participate limited the plaintiff’s ability to determine the full period of use and any profits received by the defendant.

The plaintiff elected statutory damages instead of actual damages. Because the infringement was willful, the court awarded $65,280 in statutory damages under 17 U.S.C. § 504(c)(2), equal to three times the $21,760 proposed licensing value.

Under 17 U.S.C. § 505, the court awarded the plaintiff its reasonable attorneys’ fees and costs. It approved $467 in costs, consisting of the lawsuit filing fee and service-of-process costs. Applying the lodestar method, which calculates fees by multiplying reasonable hours by a reasonable hourly rate, the court found that counsel reasonably spent 7.40 hours at $450 per hour. The resulting attorneys’ fee award was $3,330.

Permanent Injunction and Judgment

The court found that continued infringement would cause irreparable harm and that monetary damages alone would not provide an adequate remedy. It therefore permanently enjoined the defendant and specified related persons and entities from infringing the plaintiff’s copyright, using or retaining copies of the photograph, or marketing, displaying, reproducing, distributing, or assisting with works derived from or copied from the photograph.

The court entered judgment for Michael Grecco Productions, Inc. and against The New York Performing Arts Academy, Inc. for $69,077, consisting of $65,280 in statutory damages, $467 in costs, and $3,330 in attorneys’ fees. The court retained jurisdiction to enforce the judgment and permanent injunction and to consider future motions for attorneys’ fees, expenses, and costs. The Clerk was directed to terminate the motion identified as Document 21.