Ward v. Compound Entertainment LLC

Background

Jesse Ward, a professional photographer, sued Compound Entertainment LLC under the Copyright Act and the Digital Millennium Copyright Act (DMCA). Ward alleged that Compound displayed his copyrighted photograph of rapper and songwriter Bobby Shmurda on Compound’s website without permission, a license, payment, or the credit identifying Ward as the photographer.

The photograph had been registered with the United States Copyright Office. Ward had licensed it to the New York Daily News, which published it with a credit naming Ward. Ward alleged that Compound copied the photograph from a publication containing that credit, removed the credit, and displayed the altered photograph on its own website.

Compound was served through the New York Secretary of State but did not appear, answer, or otherwise respond. The Clerk entered a certificate of default, and the district court later entered an order of default and referred the case to Magistrate Judge Barbara Moses to determine damages.

Magistrate Judge’s Recommendation

Judge Moses conducted the damages proceeding using Ward’s submissions because neither party requested a hearing and Compound submitted no written materials. She found that Compound was liable under the Copyright Act for copying, publishing, and displaying an unauthorized copy of the photograph.

She also found that the allegations established violations of the DMCA’s provisions concerning removal or alteration of copyright management information. The photograph contained Ward’s credit, and Compound allegedly removed that credit before displaying the photograph. The recommendation concluded that Compound acted intentionally and knew, or had reason to know, that removing the credit could facilitate or conceal copyright infringement.

Judge Moses recommended $2,500 in statutory damages under the DMCA. Although Ward requested $10,000, she found that his submissions supporting a larger award were inadequate. She also recommended denying Ward’s request for actual damages because he had not submitted admissible evidence supporting his estimate of the photograph’s market value.

Judge Moses recommended $3,025 in attorney’s fees and costs under the DMCA, rather than the $4,512.50 Ward requested. She found that the requested attorney time was excessive and reduced the compensable hours from 9.5 to 7.5, while recognizing that Ward had not sought payment for some additional work.

District Court’s Review and Ruling

Neither party objected to the Report and Recommendation, despite being warned that failing to object would waive further judicial review. Judge Gardephe therefore reviewed the recommendation for clear error rather than conducting a new review of the disputed issues. He found no clear error and concluded that Judge Moses had properly addressed jurisdiction, venue, service, liability, damages, and fees.

The court adopted the Report and Recommendation in its entirety. It awarded Ward $2,500 in statutory damages under the DMCA and $3,025 in attorney’s fees and costs under the DMCA. The adopted recommendation did not award the actual damages Ward requested.