United States District Court, S.D. Indiana, Indianapolis Division
RICHARD N. BELL, Plaintiff,
JERMAINE TURENTINE, Defendant.
ORDER ON MOTION FOR DEFAULT JUDGMENT (DKT.
EVANS BARKER, UNITED STATES DISTRICT COURT.
February 15, 2018, Plaintiff sued Defendant for infringement
under the Copyright Act, 17 U.S.C. § 101 et
seq. Dkt. 1. Defendant failed to plead or otherwise
defend and the Clerk entered a default on August 13, 2018.
Dkt. 9. See Fed. R. Civ. P. 55(a). Now before the
Court is Plaintiff's motion for default judgment. Dkt.
10. See Fed. R. Civ. P. 55(b). The motion is granted
Seventh Circuit has explained in a recent case,
“There are two stages in a default proceeding: the
establishment of the default, and the actual entry of a
default judgment. Once the default is established, and thus
liability, the plaintiff still must establish his entitlement
to the relief he seeks.” In re Catt, 368 F.3d
789, 793 (7th Cir. 2004). This two-step process is clearly
outlined in Rule 55(a) (entry of default) and Rule 55(b)
(default judgment) of the Federal Rules of Civil Procedure.
The basic effect of an entry of default (step one) is that
“[u]pon default, the well-pleaded allegations of a
complaint relating to liability are taken as true.”
Dundee Cement Co. v. Howard Pipe & Concrete Prods.,
Inc., 722 F.2d 1319, 1323 (7th Cir. 1983). . . . At the
same time, however, the entry of default “does not of
itself determine rights.” United States v.
Borchardt, 470 F.2d 257, 260 (7th Cir. 1972). That role
is reserved for a default judgment.
VLM Food Trading Int'l, Inc. v. Ill. Trading
Co., 811 F.3d 247, 255 (7th Cir. 2016) (first alteration
omitted). Thus, “allegations regarding the amount of
damages must be proven because ‘even when a default
judgment is warranted based on a party's failure to
defend, the allegations in the complaint with respect to the
amount of damages are not deemed true.'” UMG
Recordings, Inc. v. Stewart, 461 F.Supp.2d 837, 842
(S.D. Ill. 2006) (first alteration omitted) (quoting
Catt, 386 F.3d at 793).
an initial matter the Court must determine whether
Plaintiff ha[s] established a prima facie case as to
liability for copyright infringement.” Id.
“‘Plaintiff must satisfy two requirements to
present a prima facie case of direct copyright infringement:
(1) [he] must show ownership of the allegedly infringed
material and (2) [he] must demonstrate that the alleged
infringers violate at least one exclusive right granted to
copyright holders under 17 U.S.C. § 106.'”
Id. (alteration omitted) (quoting A & M
Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th
complaint before us alleges that Plaintiff took a photograph
of the Indianapolis, Indiana, skyline in March 2000. Compl.
¶ 7. “[C]opyright protection begins at the moment
of creation of ‘original works of authorship fixed in
any tangible medium of expression[.]'” JCW
Invs., Inc. v. Novelty, Inc., 482 F.3d 910, 914 (7th
Cir. 2007) (quoting 17 U.S.C. § 102(a)). Accordingly,
Plaintiff has satisfied the first legal element. The
complaint alleges further that Plaintiff uploaded a copy of
his photograph to the Internet in August 2000, Compl. ¶
10, and that, some time before November 2017, Defendant
downloaded a copy of the photograph from the Internet without
Plaintiff's permission and used the copy in public
advertisements for Defendant's business. Id.
¶ 14-17. The Copyright Act vests the exclusive right in
a copyright holder “to reproduce the copyrighted work
in copies . . . .” 17 U.S.C. § 106(1).
Accordingly, Plaintiff has satisfied the second legal
having been established, we proceed to consider
Plaintiff's appropriate remedies.
seeks damages, costs, a permanent injunction, and a
declaratory judgment. Compl., at 8-9.
Copyright Act permits a plaintiff to elect statutory damages
in lieu of actual damages. 17 U.S.C. § 504(a), (c).
Plaintiff here has so elected. Br. Supp. 9 (citing Pl.'s
Decl. ¶ 9). Accordingly, the Court may award “a
sum of not less than $750 or more than $30, 000 as the court
considers just.” 17 U.S.C. § 504(c)(1). Here, the
minimum award of $750 is just, considering that the protected
matter is a grainy, nineteen-year-old photograph that
Plaintiff himself released into the world by uploading it to
a public website without a ...