United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
R. Leichty Judge, United States District Court.
Cunningham, a professional photographer, filed this action
alleging copyright infringement against Montgomery &
Associates, Inc. for the unauthorized use of his photograph.
ECF 1. Montgomery has neither responded to the complaint nor
appeared in the case. An entry of default was already made
under Rule 55(a) (ECF 9), and Mr. Cunningham now requests
default judgment under Rule 55(b)(2) (ECF 10).
Cunningham is a professional photographer. ECF 1 at 1. At
some time, Mr. Cunningham took a photograph of Jessica and
Nick Rosier at an event that precipitates this suit.
Id. at 2; ECF 1-1 at 2. The photograph was
originally published March 10, 2016. ECF 1-2 at 2. On or
about May 24, 2018, Montgomery ran an article in its
magazine, The Beacher, which featured the photograph
without permission or attribution. Id. at 3; ECF 1
at 3; ECF 1-3 at 2.
Cunningham claims Montgomery infringed his copyright in the
photograph by reproducing and publicly displaying it in its
magazine without attribution, violating 17 U.S.C. § 106,
and that Montgomery intentionally removed copyright
management information (CMI) from the photograph, violating
§ 1202(b) of the Digital Millennium Copyright Act
(DMCA). ECF 1 at 3, 4. Mr. Cunningham is now requesting
default judgment against Montgomery for $5, 000.00 in actual
damages pursuant to § 504(b); $10, 000.00 in statutory
damages pursuant to § 1203(c)(3)(B); $2, 550.00 in
attorney fees and $440.00 in costs under § 1203(b)(5);
and any further relief the court deems just and proper. ECF
10 at 1.
court has discretion in granting a motion for default
judgment. See O'Brien v. R.J. O'Brien &
Assocs., Inc., 998 F.2d 1394, 1398 (7th Cir. 1993). A
default judgment is justified when “the defaulting
party has exhibited a willful refusal to litigate the case
properly, ” as shown by “a party's continuing
disregard for the litigation and for the procedures of the
court” and a “willful choice not to exercise even
a minimal level of diligence.” Davis v.
Hutchins, 321 F.3d 641, 646 (7th Cir. 2003). Generally,
all well-pleaded factual allegations of the complaint will be
taken as true and entitle plaintiff to relief. See Wehrs
v. Wells, 688 F.3d 886, 892 (7th Cir. 2012). Beyond the
well-pleaded allegations, the court may also consider several
factors when determining whether to grant a default judgment,
including: (1) the amount of money requested; (2) delays
resulting in prejudice to the plaintiff; (3) material issues
of fact or substantial public importance; (4) and whether the
default is strictly technical. Cameron v. Myers, 569
F.Supp.2d 762, 764 (N.D. Ind. 2008).
determination of liability does not end the default judgment
analysis. Once liability has been determined, the damages
alleged by the plaintiff must still be proven. See
Wehrs, 688 F.3d at 892. An evidentiary hearing is
required to determine damages unless the plaintiff is seeking
a reasonably certain amount that can be ascertained through
documentary evidence or detailed affidavits. Domanus v.
Lewicki, 742 F.3d 290, 304 (7th Cir. 2014) (citing
Dundee Cement Co. v. Howard Pipe & Concrete Prods.,
Inc., 722 F.2d 1319, 1322 (7th Cir. 1983)).
case, a hearing is not necessary to determine Mr. Cunningham
is entitled to a default judgment. Taking all well-pleaded
factual allegations in the complaint as true, Mr. Cunningham
has established ownership of the photograph copyright, that
Montgomery infringed on this copyright when it used the
photograph in its magazine, and that Montgomery knowingly
removed CMI from the photograph. Montgomery was served on
January 24, 2019, (ECF 6) but has not responded in any way to
the proceedings, so the court finds that default judgment is
appropriate in this case.
more difficult to determine is whether Mr. Cunningham has met
his evidentiary burden on damages. Mr. Cunningham has
submitted only one affidavit, that of his counsel, Mr.
Richard Liebowitz (ECF 11); and the documentary evidence
attached to the complaint (e.g., the photograph) does not
inform the subject of damages.
Liebowitz gives an account of his fees and costs incurred
during this litigation and legal authority informing the
court's award of statutory damages under §
1203(c)(3)(B); however, he seems not to speak to the §
504(b) actual damages incurred by Mr. Cunningham. Without
additional evidence, mere assertions of what Mr. Cunningham
is claiming is not enough to prove actual damages. See
Bell v. Taylor, 827 F.3d 699, 709 (7th Cir. 2016)
(quoting On Davis v. The Gap, Inc., 246 F.3d 152,
166 (2d Cir. 2001)) (“The question is not what the
owner would have charged, but rather what is the fair market
value.”). The court lacks not just evidence of a
reasonably certain amount, but also enough evidence to
satisfy § 504(b). If Mr. Cunningham believes he is
entitled to actual damages under § 504(b), then he must
present evidence or request an evidentiary hearing on the
Cunningham also requests statutory damages under §
1203(c)(3)(B) of the DMCA in the amount of $10, 000. Under
Section 1203(c)(3)(B), the court may grant statutory damages
for each violation of § 1202 “in the sum of not
less than $2, 500 or more than $25, 000.” Mr. Liebowitz
has provided examples of similar cases where the courts have
found $10, 000 an appropriate amount (ECF 11 4-5); and the
court agrees that $10, 000 is appropriate here.
Mr. Liebowitz requests attorney fees and costs in the amount
of $2, 550 and $440 respectively. Id. at 6. The
court, in its discretion, may award reasonable attorney fees
and costs under § 1203(b)(4)-(5). In his affidavit, Mr.
Liebowitz provides the amounts charged for each task and any
court costs. ECF ...