Hirsch v. Sell it Social, LLC

Background

Steven Hirsch, a photojournalist, alleged that he authored and owned a photograph. The New York Post first published the photograph on March 10, 2017, with Hirsch’s name displayed beneath it as a credit. Hirsch submitted a copyright registration certificate for the photograph.

Sell It Social, LLC later published the photograph on its commercial website without a license or Hirsch’s permission. The website publication did not credit Hirsch as the photograph’s owner or author. The opinion does not state when Sell It Social published the photograph.

Hirsch served Sell It Social through the Office of the Secretary of State of New York on January 13, 2020. Sell It Social did not answer, appear, or request more time to respond. The Clerk issued a certificate of default on May 5, 2020. Hirsch’s first default-judgment motion was terminated without prejudice after the court required additional evidence and an explanation concerning an address discrepancy. Hirsch filed the renewed motion on June 22, 2020.

Default Judgment

A default judgment is a judgment entered when a defendant does not respond to the lawsuit. The court considered whether Sell It Social’s default was willful, whether it had a potentially meritorious defense, and whether denying judgment would prejudice Hirsch. The court found that all three considerations favored Hirsch. Because Sell It Social had not answered, the court could not identify any defense it might have had.

The court then examined whether Hirsch had established liability on each claim. The well-pleaded factual allegations in the complaint were treated as admitted because of Sell It Social’s failure to respond, and the court also considered Hirsch’s supporting documents.

Copyright Infringement

To establish copyright infringement, Hirsch had to show ownership of a valid copyright and unauthorized copying of the photograph’s protected elements. The court found that he established both ownership and unauthorized reproduction because Sell It Social published the photograph without his consent.

The court also held that statutory damages and attorney’s fees were available even though the date of Sell It Social’s publication was not shown. The opinion states that the photograph was first published on March 10, 2017, and that its copyright registration became effective within three months of that first publication.

Copyright Management Information

The Digital Millennium Copyright Act protects copyright management information, including identifying information about a work’s author that is conveyed with the work. The court held that the credit beneath the photograph in the New York Post article qualified as copyright management information. It found that Sell It Social intentionally removed that information when it published the photograph without Hirsch’s credit.

The court therefore found a violation of 17 U.S.C. § 1202(b)(1). It did not decide whether the facts also established a violation of § 1202(b)(2), because Hirsch had not identified a specific subsection in his complaint and the court found a violation under § 1202(b)(1).

Damages

Hirsch requested $30,000 in statutory copyright damages. The court found that Sell It Social’s infringement was willful because of its default. But the court also noted that Hirsch had not provided information about Sell It Social’s profits, his actual losses, or his licensing-fee history. The court inferred that any lost revenue was minimal and concluded that the record did not support the requested $30,000 award.

The court awarded $5,000 in statutory damages for the copyright infringement. It separately awarded $5,000 under the Digital Millennium Copyright Act, explaining that the two statutes protect different interests and that damages could be collected under both.

Attorney’s Fees and Costs

Hirsch’s attorney requested $1,912.50 in fees based on 4.5 hours of work at $425 per hour, plus $440 in costs for the filing fee and personal service. The court found the hourly rate and 4.5 hours reasonable and awarded the full $1,912.50. It also awarded the requested $440 in costs.

Disposition

The court granted Hirsch’s motion for default judgment. It awarded $5,000 for the Copyright Act violation, $5,000 for the Digital Millennium Copyright Act violation, $1,912.50 in attorney’s fees, and $440 in costs. The court directed the Clerk to enter judgment and close the case.