McDermott v. NYFireStore.com, Inc.

Background

Matthew McDermott sued NYFirestore.com, Inc., alleging copyright infringement and removal of copyright management information. The complaint alleged that the defendant reproduced and displayed on merchandise an unauthorized copy of McDermott’s copyrighted photograph of a New York City firefighter during September 11 recovery operations in Lower Manhattan. The defendant was served with the complaint but did not appear or respond. The clerk entered the defendant’s default, and McDermott moved for default judgment.

Copyright liability

For the copyright claim, the court explained that McDermott had to show ownership of a valid copyright and infringement. The complaint and the photograph’s copyright-registration certificate established ownership, and the complaint alleged that the defendant reproduced and displayed unauthorized copies on its merchandise. The court therefore found that McDermott established a prima facie case and granted the motion for default judgment as to liability on the Copyright Act claim.

For the Digital Millennium Copyright Act claim, the court explained that a claim based on removal or alteration of copyright management information requires allegations that the information existed, that it was removed or altered, and that the removal or alteration was intentional. The complaint did not allege that copyright management information existed on the photograph. The court therefore denied the motion for default judgment on that claim.

Damages, fees, and costs

McDermott sought $20,000 in actual damages and the defendant’s profits instead of statutory damages. The court found that his estimate of a $5,000 licensing fee was unsupported by invoices or other evidence showing the photograph’s market value. It also found that he provided no information from which the defendant’s profits could reliably be determined. The court therefore denied without prejudice both requests, with leave to renew them with supporting evidence.

McDermott also sought $4,037.50 in attorney’s fees and $630 in costs. Because the court denied his damages request at that stage, it declined to address fees and costs. The court stated that it would consider those requests if McDermott later submitted sufficient evidence for an award of damages.

Disposition

Judge Alison J. Nathan ordered that, on the Copyright Act claim, the motion for default judgment was granted as to liability and denied without prejudice as to damages, fees, and costs. On the Digital Millennium Copyright Act claim, the motion for default judgment was denied. The court required any motion for damages, fees, and costs to be filed within thirty days of the Opinion and Order. The order resolved Docket Number 17.