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Bell v. Top Class Moving, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

September 18, 2017

RICHARD N. BELL, Plaintiff,



         This matter is before the Court on Plaintiff Richard N. Bell's (“Mr. Bell”) Motion for Default Judgment (Filing No. 9). On May 16, 2016, Mr. Bell filed his Complaint asserting one count of copyright infringement against Defendant Top Class Moving, Inc. (“Top Class”). Top Class has not filed an answer or other responsive pleading nor defended this action in any way. A Clerk's default was entered against Top Class on July 7, 2016 (Filing No. 8). For the reasons stated below, the Court GRANTS the Motion for Default Judgment. The default judgment resolves the copyright infringement claim against Top Class as to liability but requires a determination of the appropriate relief.


         By his Complaint, Mr. Bell seeks statutory damages of at least $150, 000.00, declaratory and injunctive relief, $417.50 in costs, and reasonable attorneys' fees. (See Filing No. 1 at 9-10; Filing No. 10-1 at 5; Filing No. 11 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 3, ¶ 10). On August 4, 2011, the photograph was registered with the United States Copyright Office. Id. at 3, ¶ 11. Mr. Bell is the sole owner of the copyright to the photograph. Id. at 7, ¶ 34. Top Class downloaded or took the photograph from the Internet without Mr. Bell's permission, id. at 4 ¶ 17, and began publishing the photograph on its website in 2016 without paying for its use or obtaining authorization from Mr. Bell. Id. at 4-5, ¶¶ 20-21.

         In April 2016, Mr. Bell discovered that Top Class had published the photograph on its website, which violated Mr. Bell's exclusive rights as the copyright owner. After discovering the copyright infringement, Mr. Bell sent Top Class an email requesting that it cease and desist and pay for said infringement (Filing No. 10-1 at 3, ¶ 8). Top Class refused to pay (Filing No. 1 at 5, ¶ 23; see also Filing No. 10-1 at 3, ¶ 8). Mr. Bell alleges that Top Class's copyright infringement was willful (Filing No. 1 at 8, ¶¶ 40-41).


         The 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 Court has discretion to grant or deny a default judgment. 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)). However, damages “must be proved unless they are liquidated or capable of calculation.” Wehrs, 688 F.3d at 892. Because Top Class failed to respond to the allegations against it, all of the well-pleaded factual allegations in the Complaint regarding liability are taken as true.

         To 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: (1) Mr. Bell is the sole owner of a registered copyright in the Indianapolis photograph, (2) Top Class downloaded or otherwise took the photograph from the Internet without permission, (3) Top Class published the photograph on its website without permission and without paying for it, and (4) Top Class's conduct violated the exclusive rights of Mr. Bell as owner of the copyright. These allegations establish liability for Top Class's copyright infringement.

         Mr. Bell seeks statutory damages and argues that Top Class's infringement was willful. 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).[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 the 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 deciding what amount of statutory damages to award, 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 Right Prods., 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. Significantly, although the Complaint alleges that Top Class'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 Top Class about his copyright in the photograph and asked it to cease infringing activities. The Court notes that such an allegation is first made in Mr. Bell's ...

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