Exler v. Travel Exploration, Inc.

Background

Patrick Exler alleged that Travel Exploration, Inc. used a photograph he took without permission, violating the Copyright Act. The Clerk of Court entered a certificate of default after the defendant failed to answer or otherwise defend the action. Exler then moved for default judgment under Federal Rule of Civil Procedure 55. The defendant also failed to respond to the court’s order to show cause regarding default judgment.

Exler’s counsel submitted an affidavit stating that the motion papers, supporting declarations, damages statement, proposed judgment, and docket were sent to the defendant by United States Priority Mail at the defendant’s address on file with the New York Secretary of State.

Liability

For a copyright-infringement claim, the plaintiff must show ownership of a valid copyright and copying of original elements of the work. Exler stated that he took the photograph and registered it with the Copyright Office. The court explained that a copyright-registration certificate is initial evidence that a copyright is valid. Exler also submitted proof that the photograph appeared on the defendant’s website. The court therefore concluded that he was entitled to judgment on the infringement claim.

Damages

Exler requested $3,000 in damages. He provided evidence that he could have charged a $1,500 licensing fee for the photograph. He also argued that the court should assume the defendant earned at least $1,500 from the infringement. The court rejected that argument because Exler provided no evidence of the defendant’s profits or revenue related to the photograph. The court awarded $1,500 in actual damages.

Attorney’s Fees and Costs

Exler requested $2,550 in attorney’s fees for six hours of work by his counsel, Richard Liebowitz, at $425 per hour. The Copyright Act allows reasonable attorney’s fees and costs for a prevailing party. The court found that the six hours were reasonable but reduced the hourly rate to $350. It cited the simplicity of the claim, counsel’s performance in the litigation, and counsel’s repeated failures to follow court rules and an express court order. The resulting fee award was $2,100.

Exler also requested $440 in costs: a $400 filing fee and a $40 personal-service fee. Because he provided no documentation supporting the $40 service fee, the court awarded only the $400 filing fee.

Disposition

The court granted Exler’s motion for default judgment. It awarded $1,500 in damages, $2,100 in attorney’s fees, and $400 in costs, totaling $4,000. The Clerk of Court was directed to close the case.