Bass v. Diversity Inc Media

Background

Gabriella Bass filed a complaint alleging that Diversity Inc. Media infringed her copyright in a photograph of Statue of Liberty climber Therese Patricia Okoumou. Bass alleged that she owned and had registered the photograph, which had first been licensed to the New York Post with a “gutter credit” identifying Bass as the photographer. She alleged that Diversity Inc. Media later copied and displayed the photograph on its website without a license, permission, or consent, and without the photographer credit.

Diversity Inc. Media was served on March 14, 2019, but did not answer or otherwise respond. The Clerk entered default on July 8, 2019. Bass then moved for default judgment and served that motion on the defendant.

Liability

The court explained that a default judgment has two steps: entry of default, followed by a judgment awarding relief supported by the pleadings and the law. A defendant’s default admits well-pleaded factual allegations, but it does not automatically admit legal conclusions.

For the Copyright Act claim, the court found that Bass sufficiently alleged ownership of a valid copyright and infringement through Diversity Inc. Media’s reproduction and public display of the photograph. The court therefore found a sufficient initial showing of liability.

For the Digital Millennium Copyright Act claim, the court found that Bass sufficiently alleged that copyright management information existed in the form of the photographer credit, that Diversity Inc. Media removed it, and that the removal was intentional. The court concluded that Bass established liability under 17 U.S.C. § 1202(b).

Damages and fees

Bass sought $30,000 in statutory copyright damages and $10,000 in statutory damages under the Digital Millennium Copyright Act. The court treated the copyright infringement as willful because of the defendant’s default, but found that the available information did not support the larger requested award. Bass had not provided evidence of the defendant’s profits or her actual licensing losses and had declined to submit her licensing-fee history. The court inferred that her lost revenue was minimal and concluded that $5,000 would adequately serve compensation and deterrence purposes for the Copyright Act violation.

The court also awarded $5,000 for the Digital Millennium Copyright Act violation, citing the same limited evidence of direct injury and the circumstances of the violation.

The court approved seven hours of attorney work at $425 per hour, awarding $2,975 in attorney’s fees. It also awarded $440 in costs for the filing and service fees.

Disposition

Judge Alison J. Nathan granted Bass’s motion for default judgment. The court entered judgment against Diversity Inc. Media for $5,000 for the Copyright Act infringement, $5,000 for the Digital Millennium Copyright Act violation, $2,975 in attorney’s fees, and $440 in costs. The Clerk was directed to enter judgment and close the case.