Weiss v. Cherry Pop Entertainment Group, LLC

Background

Mark Weiss brought a copyright-infringement action against Cherry Pop Entertainment Group, LLC. He alleged that Cherry Pop used on its website, www.retrojunkiebar.com, a photograph he took in 1981 of the band Van Halen. Weiss alleged that the United States Copyright Office registered the photograph in 2017, that Cherry Pop published it without permission in 2018, and that he discovered the use in January 2019.

The opinion says Weiss served Cherry Pop with the summons and complaint in July 2021; it also refers to Cherry Pop’s failure to respond since service in August 2021. The clerk entered Cherry Pop’s default in August 2021. Weiss moved for default judgment in September 2021, and Cherry Pop did not respond to the motion or otherwise participate in the lawsuit.

Default judgment

The court expressed concern that Weiss waited more than two years after discovering the alleged infringement before filing suit. The court also noted that the motion did not include proof that it had been served on Cherry Pop, making it unclear whether Cherry Pop knew about the motion.

The court nevertheless granted default judgment, subject to the condition and response opportunity stated in the order. Cherry Pop could respond within 14 calendar days after service of the order. If it did not respond, judgment would be entered under the order. The court incorporated its discussion of the rules and factors governing default judgment in another copyright case involving an alleged photograph infringement.

Damages and fees

The court declined Weiss’s request for $5,000 in statutory damages and awarded $3,000 instead. It described that amount as three times Weiss’s customary licensing fee and said the record did not support a higher multiplier.

The court granted Weiss’s request for $4,790 in attorney’s fees and $484 in costs under the Copyright Act. It found the requested amounts reasonable under the circumstances, including Cherry Pop’s failure to appear or respond, and found that the billing records adequately supported the request. The court granted interest at the statutory rate from the date judgment is entered and denied prejudgment interest.

Disposition

Default judgment was granted subject to the service and response condition. Statutory damages were awarded in the amount of $3,000; the request for $5,000 was declined. The request for $4,790 in attorney’s fees and $484 in costs was granted. Statutory post-judgment interest was granted, and prejudgment interest was denied.