Green v. Akonik Label Group LLC

Background

Justin Green alleged that he owns a copyright in a photograph of a South African flower and that Akonik Label Group LLC posted the photograph on its Twitter and Instagram accounts without authorization. The clerk entered a certificate of default after Akonik did not respond. The court later ordered Akonik to explain why a default judgment should not be entered; Akonik did not oppose the motion or appear. The court entered a default judgment and referred the case to Magistrate Judge Ona T. Wang to determine damages.

Green elected statutory damages instead of proving actual damages. He requested $30,000 in statutory damages, $1,912.50 in attorney’s fees, $440 in costs, and post-judgment interest. Judge Wang recommended $800 in statutory damages, the requested attorney’s fees, and the requested costs. Green objected and argued that he should receive at least $25,000.

Damages analysis

The Copyright Act permits statutory damages of $750 to $30,000 for an infringement, and up to $150,000 when the infringement is willful. The court explained that a defendant’s default can support an inference of willfulness, but found that inference weak here because Green supplied no evidence that Akonik knew about the infringement. The court also considered the absence of evidence concerning Green’s losses or Akonik’s gains, deterrence, and the parties’ conduct.

The court rejected Green’s argument that awards of $25,000 to $30,000 are invariably appropriate for infringement of a single photograph. It also held that Judge Wang did not improperly penalize Green for choosing not to provide evidence of actual damages. Although a plaintiff may make that choice, the court may consider the absence of such evidence when setting statutory damages. After considering the relevant factors and awards in similar cases, the court determined that $1,000 in statutory damages was appropriate.

Attorney’s fees, costs, and disposition

The court found no error in Judge Wang’s recommendation of $1,912.50 in attorney’s fees, based on 4.5 hours of work at $425 per hour, and $440 in costs. The court stated that the requested fees and costs were reasonable even though they exceeded twice the recommended statutory-damages amount, because counsel did not charge for time after filing the proposed default judgment.

Judge Gardephe concluded that the Report and Recommendation was adopted in part. Green was awarded (1) $1,000 in statutory damages, (2) $1,912.50 in attorney’s fees, and (3) $440 in costs. Post-judgment interest was ordered on the entire amount from the date of judgment at the rate provided by 28 U.S.C. § 1961(a). The clerk was directed to enter judgment and close the case.