Rosen v. Movie Times, Inc.

Background

Barry Rosen, a professional photographer, registered a photograph of actress Jeri Ryan for copyright protection in 2005 and stated that he still held the copyright. He alleged that Movie Times, Inc. displayed the photograph on its website without permission to advertise, market, and promote its business. Rosen said he first discovered the infringement on July 18, 2018.

Movie Times, Inc. failed to plead, oppose the motion, or otherwise defend the action. The court found that federal-question jurisdiction existed because the claim arose under federal copyright law. It also found personal jurisdiction and proper venue because Movie Times, Inc. was a California corporation operating in the district with its principal place of business in San Jose, California. The court further found that substituted service had complied with the applicable requirements and provided proper notice.

Default Judgment

A default judgment is a judgment entered when a party fails to defend. The court applied the seven factors commonly used to decide whether default judgment is appropriate, including prejudice, the merits of the claim, the sufficiency of the complaint, the amount at stake, the possibility of factual disputes, whether the default resulted from excusable neglect, and the policy favoring decisions on the merits.

The court concluded that all seven factors favored default judgment. It treated the well-pleaded allegations establishing liability as true, except for the amount of damages. The court found that Rosen had shown a valid copyright and alleged that Movie Times, Inc. copied and distributed the photograph online without permission or a license, establishing a prima facie copyright-infringement claim. The court also found no indication that the company’s failure to respond resulted from excusable neglect.

Relief Granted and Denied

The court granted Rosen’s Motion for Default Judgment. It found that the allegation of willful infringement was admitted because of the default. Although Rosen requested $150,000 in willful statutory damages or, alternatively, $25,000, the court awarded $37,200. It calculated that amount using a $5,000 annual licensing fee, an approximately 2.48-year period of evidenced infringement, and a three-times multiplier. The court stated that the $150,000 request was unsupported by the evidence and that the $37,200 award had a plausible relationship to Rosen’s actual damages.

The court granted Rosen’s request for attorneys’ fees, paralegal fees, and costs for a total of $10,757.50. It found the attorney and paralegal rates and hours reasonable and supported by billing records. The awarded costs included service of process, the complaint filing fee, and a courier fee. The court denied the request for office-administrator fees because it treated that work as a clerical cost ordinarily included in an attorney’s hourly rate.

The court granted Rosen’s requests for pre-judgment and post-judgment interest. It denied Rosen’s request for a permanent injunction because the evidence showed infringing use through January 7, 2021, but did not establish continuing infringement or a specific threat of future infringement. The clerk was directed to close the file.