McGlynn v. Cube New York Inc.

Background

David McGlynn, a professional photographer, sued Cube New York Inc., a website operator. He alleged that Cube displayed nine of his original photographs of the Playboy Club in New York City without a license and without the photo credits that appeared with the photographs in a New York Post article. McGlynn asserted claims under the Copyright Act and the Digital Millennium Copyright Act (DMCA).

Cube was served but did not respond to the complaint or otherwise defend the case. The Clerk issued a Certificate of Default, and McGlynn moved for default judgment. The court explained that Cube’s default required it to accept McGlynn’s factual allegations as true, but it still had to determine whether those allegations established legal liability. A default did not automatically establish the amount of damages.

DMCA claim

McGlynn sought $2,500 for each of nine alleged violations of DMCA § 1202(b), for a total of $22,500. That provision concerns the removal or alteration of copyright-management information, including an author’s name or other identifying information connected with a copyrighted work.

The court found that McGlynn adequately alleged the first three required elements: the photographs had copyright-management information in the form of photo credits; Cube distributed the photographs on its website without those credits; and Cube knew the credits had been removed or altered. But the claim also required allegations supporting that Cube knew its distribution of the photographs would induce, enable, facilitate, or conceal copyright infringement. The court found McGlynn’s allegations that Cube lacked a license or permission insufficient, and characterized his allegation that Cube intended to induce infringement as a legal conclusion rather than a factual allegation.

The court therefore denied McGlynn’s motion for default judgment on the DMCA claim and denied his requested DMCA damages.

Copyright claim and damages

The court found that McGlynn adequately stated a Copyright Act claim by alleging that he owned the registered copyrights, had not permitted Cube to publish the photographs, and that Cube nevertheless published them on its website without attribution.

McGlynn requested $2,500 in statutory damages for each photograph. The court noted that statutory damages should, when possible, bear some relationship to actual damages, including the licensing fee the copyright owner might have charged. McGlynn did not disclose the photographs’ actual sale price or his usual licensing fee. The court also found the requested amount excessive because all nine photographs came from McGlynn’s engagement at a single event.

The court awarded $1,000 for each of the nine photographs, for total Copyright Act damages of $9,000. It also granted post-judgment interest, calculated from the date judgment was entered at the rate specified in 28 U.S.C. § 1961.

Attorney fees, costs, and disposition

Under 17 U.S.C. § 505, the court had discretion to award reasonable attorney fees in a copyright-infringement action. It awarded McGlynn the requested $722.50 in attorney fees and $440 in costs, totaling $1,162.50.

The court stated that the default-judgment motion was granted in part and denied in part. It denied the request for DMCA damages, granted $9,000 in Copyright Act damages, and granted $1,162.50 in reasonable fees and costs. The Clerk of Court was directed to enter final judgment according to the order and terminate the pending motion.