United States District Court, S.D. Indiana, Indianapolis Division
RICHARD N. BELL, Plaintiff,
TOP CLASS MOVING, INC., Defendant.
ENTRY ON PLAINTIFF'S MOTION FOR DEFAULT
WALTON PRATT, JUDGE
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.
CLAIMS AGAINST TOP CLASS
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
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.
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).
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
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.
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. §
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)).
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 ...