Jerstad v. New York Vintners LLC

Background

Robin Jerstad, a professional photographer, registered a photograph depicting wine and fried chicken with the United States Copyright Office. He alleged that New York Vintners LLC used the photograph in an online advertisement for one of its wine and food classes without obtaining a license or his permission. He also alleged that New York Vintners removed the photograph’s author credit.

Jerstad asserted claims under the Copyright Act and the Digital Millennium Copyright Act. He sought actual damages for the copyright claim, statutory damages for the Digital Millennium Copyright Act claim, and attorney’s fees and costs. New York Vintners failed to respond to the complaint. Jerstad obtained a clerk’s certificate of default, and Judge Koeltl found that Jerstad was entitled to a default judgment. Judge Koeltl then referred the damages question to Magistrate Judge Wang for an inquest.

Damages analysis

A default establishes the well-pleaded factual allegations, but damages still require evidentiary support. Magistrate Judge Wang determined that no hearing was necessary because the damages could be calculated with reasonable certainty from the written submissions.

For the Copyright Act claim, Jerstad elected actual damages instead of statutory damages. Because he could not obtain discovery of New York Vintners’ profits, the report evaluated damages using the fair market value of a reasonable license. The report rejected Jerstad’s requested $1,500 license fee because his declaration offered a legal conclusion rather than evidence of the photograph’s value. It also found that proposed fees of $2,900 and $2,400 were not suitable comparisons because they included photography services and other work, not merely a license to use an existing photograph.

The report found that an invoice charging $1,000 per photograph for licensing-only work was the most appropriate comparison. Because Jerstad provided no evidence that the photograph at issue had a greater market value, the report recommended $1,000 in actual damages. It rejected Jerstad’s request for $3,000 because he provided no legal or evidentiary basis for multiplying the actual damages.

For the Digital Millennium Copyright Act claim, the report found that Jerstad adequately alleged that New York Vintners reproduced the photograph and removed copyright-management information, specifically the author credit. The report found evidence supporting one violation. Although statutory damages could range from $2,500 to $25,000, the report found it unclear whether the violation was willful and found that Jerstad had not adequately supported his requested $10,000 amount. It therefore recommended the statutory minimum of $2,500.

Attorney’s fees and costs

The report concluded that Jerstad was entitled to a modest attorney’s fee award under the Digital Millennium Copyright Act. It reduced counsel’s requested hourly rate from $425 to $350 and reduced the compensable time from 9.5 hours to six hours, resulting in $2,100 in attorney’s fees. Because Jerstad provided no documentation supporting the requested $475 in costs, the report recommended awarding only the $400 filing fee reflected on the docket. The total recommended award for fees and costs was $2,500.

Recommendation and objections

Magistrate Judge Ona T. Wang recommended that Jerstad receive $3,500 in damages—$1,000 for the Copyright Act violation and $2,500 for the Digital Millennium Copyright Act violation—plus $2,500 in attorney’s fees and costs, for a total of $6,000. The recommendation was addressed to District Judge John G. Koeltl. The parties were given 14 days after receiving the report to file written objections, and the report stated that failing to object within that period would waive objections and prevent appellate review.