United States District Court, S.D. Indiana, Indianapolis Division
RICHARD N. BELL, Plaintiff,
MICHAEL F.S. PATRICK, Defendant.
ENTRY ON PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT
AND ORDER SETTING HEARING
WALTON PRATT, JUDGE
matter is before the Court on Plaintiff Richard N. Bell's
(“Mr. Bell”) Motion for Default Judgment Against
Defendant Michael F.S. Patrick (“Mr. Patrick”)
(Filing No. 10). On May 10, 2016, Mr. Bell filed a
Complaint asserting a copyright infringement claim against
who has neither filed an answer or other responsive pleading
nor defended this action in any way. The Clerk of Court
entered default against Mr. Patrick on June 30, 2016
(Filing No. 8).
reasons stated below, the Court GRANTS the
Motion for Default Judgment. The default judgment resolves
the copyright infringement claim against Mr. Patrick as to
liability but requires a determination of the appropriate
CLAIMS AGAINST MR. PATRICK
Bell seeks statutory damages of at least $150, 000.00,
declaratory and injunctive relief, $417.50 in costs, and
reasonable attorneys' fees. (SeeFiling No. 1 at
9; Filing No. 12 at 2.) The photograph at issue
in this case, a photograph of the Indianapolis skyline, was
first published on the Internet by Mr. Bell on August 29,
2000 (Filing No. 1 at 2, ¶ 10). On August 4,
2011, the photograph was registered with the United States
Copyright Office. Id. at 3, ¶ 11. Mr. Bell is
the sole proprietor of the copyright to the photograph.
Id. at 6, ¶ 34. The photograph is available for
purchase from Mr. Bell's website for $200.00 (Filing
No. 12 at 1, ¶ 5). Mr. Patrick downloaded or took
the photograph from the Internet and copied it onto a
webserver (Filing No. 1 at 4 ¶ 17). Mr. Patrick
began publishing the photograph on his website in 2016.
Id. at 4-5, ¶¶ 20-21.
April 2016, Mr. Bell discovered that Mr. Patrick had
published the photograph on a website owned by Mr. Patrick
without paying for its use. Id. at 1, ¶ 1;
id. at 4-5, ¶¶ 18, 23. At the bottom of
the website page on which the photograph was published
appeared the following: “Michael Patrick © 2013
All Rights Reserved.” (Filing No. 11-1 at 3,
¶ 7 and Ex. B.) Mr. Patrick's conduct violated Mr.
Bell's exclusive rights as the copyright owner
(Filing No. 1 at 6 ¶ 35).
discovering the copyright infringement, Mr. Bell notified Mr.
Patrick in writing of the infringement and demanded payment
for the use of the photograph (Filing No. 11-1 at 3,
¶ 8). Mr. Patrick refused to pay (Filing No. 1 at
5, ¶ 23). Mr. Bell alleges that Mr. Patrick's
copyright infringement was willful. Id. at 7,
Court may enter a default judgment against a party who has
failed to plead or otherwise defend itself. Fed.R.Civ.P.
55(b)(2). The decision to grant or deny a default judgment is
within the Court's discretion. See Domanus v.
Lewicki, 742 F.3d 290, 301 (7th Cir. 2014) (indicating a
decision on default judgment is reviewed for abuse of
discretion). A default judgment establishes the
defendant's liability to the plaintiff on the cause of
action alleged in the complaint. Wehrs v. Wells, 688
F.3d 886, 892 (7th Cir. 2012). “‘Upon default,
the well-pleaded allegations of a complaint relating to
liability are taken as true.'” VLM Food Trading
Int'l, Inc. v. Ill. Trading Co., 811 F.3d 247, 255
(7th Cir. 2016) (quoting Dundee Cement Co. v. Howard Pipe
& Concrete Prods., Inc., 722 F.2d 1319, 1323 (7th
Cir. 1983)). Damages, however, “must be proved unless
they are liquidated or capable of calculation.”
Wehrs, 688 F.3d at 892. Since Mr. Patrick failed to
respond to the allegations against him, all of the
well-pleaded factual allegations in the Complaint regarding
liability are taken as true.
establish copyright infringement, a plaintiff must prove:
“(1) ownership of a valid copyright, and (2) copying of
constituent elements of the work that are original.”
Design Basics, LLC v. Lexington Homes, Inc., 858
F.3d 1093, 1099 (7th Cir. 2017) (quotation marks and citation
omitted), reh'g and reh'g en banc denied
(July 10, 2017). The Complaint alleges that Mr. Bell is the
sole owner of a registered copyright in the Indianapolis
photograph, Mr. Patrick downloaded the photograph and copied
it onto his webserver, Mr. Patrick published it on his
website without permission, and he violated the exclusive
rights of Mr. Bell as owner of the copyright. These
allegations, taken as true, establish Mr. Patrick's
liability for copyright infringement.
liability established, the Court turns to the relief
requested. Mr. Bell seeks statutory damages and argues that
Mr. Patrick's infringement was willful (Filing No. 11
at 8-10). The Copyright Act allows the copyright owner
to elect, and the Court to grant, “an award of
statutory damages for all infringements involved in the
action, with respect to any one work . . . in a sum of not
less than $750 or more than $30, 000 as the court considers
just.” 17 U.S.C. § 504(c)(1). If the copyright
infringement is willful, “the court in its discretion
may increase the award of statutory damages to a sum of not
more than $150, 000.” 17 U.S.C. § 504(c)(2). The
Court has broad discretion to assess damages within these
statutory limits. See F.W. Woolworth Co. v.
Contemporary Arts, Inc., 344 U.S. 228, 231-32 (1952);
F.E.L. Publ'ns, Ltd. v. Catholic Bishop of
Chi., 754 F.2d 216, 219 (7th Cir. 1985). In
determining the amount of statutory damages to be awarded,
the Court considers several factors:
(1) the infringer's state of mind; (2) any expenses saved
and profits earned by the infringer; (3) any revenue lost by
the copyright holder; (4) the deterrent effect on the
infringer and others; (5) the infringer's cooperation in
providing evidence concerning the value of the infringing
material; and (6) the conduct and attitude of the parties.
Bell v. McLaws, 2015 WL 751737, at *1 (S.D. Ind.
Feb. 23, 2015) (citing Bryant v. Media RightProds., Inc.,603 F.3d 135, 144 (2d Cir. 2010)). The
Court is without sufficient evidence at this time to assess
these factors and determine an appropriate statutory damages
award. Most importantly, while the Complaint alleges that Mr.
Patrick's infringement was willful, the allegations in
that regard are conclusory and without any factual support.
For example, the Complaint does not allege that Mr. Bell
notified Mr. Patrick about his copyright in the photograph