Bern v. Empire State Renovators LLC

Background

Kerry Bern is a professional photographer who created two interior photographs in July 2020. He registered the photographs together with the Register of Copyrights on September 20, 2020, and the court found that he owned them. Empire State Renovators LLC used the photographs on its website in connection with advertising its remodeling services. The court found that Empire State Renovators LLC had no license or permission to use the photographs.

Bern discovered the use in August 2021. Through counsel, he sent an infringement notice and later made additional email and telephone efforts to communicate with the company. The court noted that the company did not participate in the lawsuit, and the clerk entered a default against it.

Default Judgment and Copyright Infringement

Under Federal Rule of Civil Procedure 55, the court reviewed whether the complaint’s well-pleaded allegations established liability before entering default judgment. The court concluded that they did. A default meant that Empire State Renovators LLC admitted the complaint’s well-pleaded factual allegations and could not contest those established facts in the judgment.

The court found that Bern proved the two elements of copyright infringement: ownership of a valid copyright and copying of original parts of the work. Bern’s copyright registration supported the copyright’s validity, and a screenshot of the company’s website showed that it had copied and published duplicate images of the photographs. The court therefore entered final default judgment against Empire State Renovators LLC for copyright infringement.

Willfulness and Damages

The court found that the infringement was willful and deliberate. It relied on the company’s default, its failure to respond meaningfully after receiving infringement notices, its refusal to pay a reasonable licensing fee, and the copyright disclaimer on its own website.

Bern presented evidence that a reasonable license would have cost approximately $350 per year for each photograph. The court calculated potential actual damages at $1,400, but found that the company’s failure to participate in discovery prevented a full assessment of its use and profits. Bern elected statutory damages instead.

The court awarded $7,000 in statutory damages for the willful infringement. The judgment stated that this amount was the principal sum recoverable from Empire State Renovators LLC.

Attorney’s Fees and Costs

The court found that an award of attorney’s fees and costs was appropriate under the Copyright Act because of the willful infringement and the company’s failure to defend or participate in the case. The court did not set a fee amount. It permitted Bern to file a timely bill of costs and/or a motion asking the court to determine attorney’s fees.

Permanent Injunction

The court issued a permanent injunction against Empire State Renovators LLC and its employees, agents, officers, directors, attorneys, successors, affiliates, subsidiaries, assigns, and those acting in concert with it. The injunction prohibits them from directly or indirectly infringing Bern’s copyright; marketing, displaying, advertising, reproducing, or otherwise dealing in works derived from or copied from his copyrighted photographs; and reproducing, displaying, distributing, using, or retaining copies of his copyrighted photographs in physical or electronic form.

Disposition

Judge Hellerstein entered judgment in Bern’s favor, awarded $7,000 in statutory damages, and issued the permanent injunction. The court retained jurisdiction to enforce the judgment and to consider any motion concerning attorney’s fees, expenses, and costs.