Prepared Food Photos, Inc. v. Trip Restaurant LLC

Background

Prepared Food Photos, Inc., formerly known as Adlife Marketing & Communications Co., Inc., licenses professional food photographs. The dispute concerned one photograph, titled “BeefPrimeRibSlice004_ADL.” The opinion states that the plaintiff registered the photograph with the Register of Copyrights on January 13, 2017, under Registration No. VA 2-047-019, after rights were transferred to the plaintiff under a work-for-hire agreement.

The court found that Trip Restaurant LLC, doing business as Wellington’s Grill, published the photograph on its website in connection with marketing its restaurant. The defendant had never been licensed to use the photograph. The plaintiff discovered the use on approximately April 8, 2022, sent infringement notices and other communications, and was unable to obtain payment or a resolution. The opinion states that the photograph remained on the defendant’s website through at least the filing of the motion.

Default judgment and copyright infringement

A default judgment is a judgment entered when a defendant fails to plead or otherwise defend. Under Federal Rule of Civil Procedure 55, the court first requires a clerk’s entry of default and then determines whether judgment should be entered. Although a default generally admits the complaint’s well-pleaded factual allegations, the court must still decide whether those allegations establish a valid claim.

The court concluded that the plaintiff established the two elements of copyright infringement: ownership of a valid copyright and copying of original parts of the work. The registration certificate supported the copyright’s validity and ownership, and the defendant’s default prevented it from challenging those matters in this proceeding. Website screenshots showed that the defendant copied and published a duplicate of the photograph. The court therefore entered final default judgment against Trip Restaurant on Count I.

Willfulness

The court found the infringement willful and deliberate. It relied on the defendant’s default, the plaintiff’s pre-lawsuit notices and communications, the defendant’s failure to pay a reasonable licensing fee or substantively respond, and the continued publication of the photograph after multiple notices. Willful infringement can support an increased statutory-damages award.

Damages, costs, and attorney’s fees

The plaintiff’s standard subscription price was $999 per month with a minimum twelve-month commitment, or $11,988 for one year of access to its photograph library. The court viewed that annual fee as a useful measure for the photograph’s licensing value. It concluded that the defendant’s failure to participate prevented the plaintiff from fully determining the duration of use and any profits attributable to the infringement. The plaintiff elected statutory damages instead of actual damages.

The court awarded $47,952 in statutory damages under 17 U.S.C. § 504(c)(2). This amount represented twice the court’s $23,976 benchmark for the known period of use and reflected the infringement’s willfulness, the difficulty of calculating actual damages, and the need for deterrence.

The court also awarded $577 in taxable costs for the filing fee and service of process. It approved attorney’s fees after applying a lodestar analysis, which calculates fees using reasonable hours and a reasonable hourly rate, and awarded $3,005 in fees. The total judgment was $51,534.

Permanent injunction

The court found that continued infringement would cause irreparable injury and that the plaintiff lacked an adequate remedy at law. It permanently prohibited Trip Restaurant, along with its employees, agents, officers, directors, attorneys, successors, affiliates, subsidiaries, assigns, and persons acting in concert with it, from directly or indirectly infringing the plaintiff’s copyright or marketing, offering, selling, displaying, advertising, reproducing, developing, manufacturing, or assisting with works derived from or copied from the photograph. The injunction also prohibited reproducing, displaying, distributing, using, or retaining any physical or electronic copy of any copyrighted photograph owned by the plaintiff.

Disposition

The court entered judgment in favor of Prepared Food Photos, Inc. and against Trip Restaurant LLC for $51,534 and entered the permanent injunction. It directed the Clerk of Court to terminate the motion from the docket.