Case 3:23-cv-00258-KAD Document 20 Filed 03/29/24 Page 1 of 9

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

PREPARED FOOD PHOTOS, INC., ) CASE NO. 3:23-cv-258 (KAD)

Plaintiff, )
)
v. )
)
MISS THELMA’S RESTAURANT LLC, ) March 29, 2024
Defendant. )

MEMORANDUM OF DECISION
RE: PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT (ECF NO. 14)

Kari A. Dooley, United States District Judge:

Plaintiff Prepared Food Photos, Inc. f/k/a/ Adlife Marketing & Communications Co., Inc.,

(“Plaintiff”) brings this copyright infringement claim against Miss Thelma’s Restaurant LLC

(“Defendant”) and alleges that Defendant displayed a copyrighted photograph on its website for

which Plaintiff owns the license and that Defendant failed to pay the subscription fee which would

have given Defendant permission to do so. Plaintiff brings a single claim for copyright

infringement pursuant to the Copyright Act, 17 U.S.C. § 501(a). Although served with a summons

and the Complaint on April 2, 2023, Defendant failed to appear or defend the action. On May 8,

2023, the Clerk of the Court, upon motion of Plaintiff, entered a default against the non-appearing

Defendant. Pending before the Court is Plaintiff’s motion for default judgment. For the reasons

set forth below, the motion is GRANTED and the Clerk of the Court is directed to enter Judgment

in favor of Plaintiff in accordance with the following.

Facts

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The allegations in the Complaint, which are deemed admitted, 1 are as follows. Plaintiff is

in the business of licensing high-end, professional photographs for the food industry. Compl. ¶ 1,

ECF No. 1. Plaintiff offers its clients, on a subscription basis, access to a library of professional

photographs which the clients may use for advertising and other legitimate purposes. Id. ¶ 7.

Clients enter into licensing agreements, for a minimum of twelve months, which affords them

access to over 20,000 copyrighted photographs. Plaintiffs charge a monthly licensing fee of

$999.00. Id. ¶ 7-8. Many of Plaintiff’s clients are professional advertising agencies who perform

work for their own clients in the food industry. Decl. of Rebecca Jones in support of Mot. for

Default Judgment (“Jones Decl.”) ¶ 7, ECF No. 14-1.

In 2007, a professional photographer created a photograph titled “BreadCorn003_ADL”,

the “Work.” In conjunction with an agreement between the photographer and Plaintiff, the Work

was registered by Plaintiff in 2016 with the Register of Copyrights and given Registration No. VA

2-014-127. Compl. ¶¶ 11-12.

Defendant is a restaurant in Fairfield County Connecticut, operating since 1999. Id. ¶ 14.

Defendant maintains a website as well as a number of social media accounts on which it markets

or advertises the restaurant. Id. ¶ 15. On November 27, 2019, the Work was posted to the Facebook

page of Defendant without authorization or license. Defendant had not entered into a licensing

agreement with Plaintiff which would have afforded Defendant access to the Work and many other

photographs. Id. ¶ 16-18.

Through an ongoing practice of reverse-image searching of the Internet for images that are

contained in Plaintiff’s library of copyrighted works, Plaintiff discovered the Defendant’s use of

1
See City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (“[A] defendant who defaults
thereby admits all well-pleaded factual allegations contained in the complaint.”) (internal citations and quotations
omitted).

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the image on February 18, 2022. Efforts to negotiate a licensing fee with Defendant failed. This

suit followed. Id. ¶ 21.

Standard of Review

“It is well established that a party is not entitled to a default judgment as of right; rather the

entry of a default judgment is entrusted to the sound judicial discretion of the court.” Cablevision

of S. Conn. Ltd. Partnership v. Smith, 141 F. Supp. 2d 277, 281 (D. Conn. 2001) (internal quotation

marks omitted) (citing Shah v. N.Y. State Dep’t of Civil Serv., 168 F.3d 610, 615 (2d Cir. 1999)).

In civil cases, however, “where a party fails to respond, after notice the court is ordinarily justified

in entering a judgment against the defaulting party.” Bermudez v. Reid, 733 F.2d 18, 21 (2d Cir.

1984). In making this determination and evaluating the allegations asserted against a defendant,

the Court may “deem[] all the well-pleaded allegations in the pleadings to be admitted.”

Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 108 (2d Cir.

1997). Here, the Court also has the benefit of an affidavit from Plaintiff’s representative, Rebecca

Jones, which further establishes both liability and to a lesser extent, damages.

In determining damages, “[t]he outer bounds of recovery allowable are of course measured

by the principle of proximate cause. The default judgment d[oes] not give plaintiff a blank check

to recover from defendant any losses it had ever suffered from whatever source. It could only

recover those damages arising from the acts and injuries pleaded.” Greyhound Exhibitgroup, Inc.

v. E.L.U.L. Realty Corp., 973 F.2d 155, 158–59 (2d Cir. 1992) (internal brackets and citation

omitted). The damages sought must be established “with reasonable certainty.” Transatlantic

Marine Claims Agency, Inc., 109 F. 3d at 111.

As discussed below, Plaintiff has sufficiently alleged facts supporting its claims and has

produced evidence of damages which allow the Court to determine damages with reasonable

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certainty. Accordingly, Defendant’s failure to appear, respond or otherwise defend the instant

action renders a default judgment in favor of Plaintiff appropriate.

Discussion

The Copyright Act, 17 U.S.C. § 501(a), provides that “[a]nyone who violates any of the

exclusive rights of the copyright owner as provided by sections 106 through 122 [17 U.S.C. §§

106-122] or of the author as provided in section 106A(a) [17 U.S.C. § 106A(a)] ... is an infringer

of the copyright or right of the author, as the case may be.” 17 U.S.C. § 501(a). “To establish

copyright infringement, two elements must be proven: (1) ownership of a valid copyright, and (2)

copying of constituent elements of the work that are original.” Clanton v. UMG Recordings, Inc.,

556 F. Supp. 3d 322, 327 (S.D.N.Y. 2021) (quoting Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499

U.S. 340, 361 (1991)). The holder of a copyright has the exclusive rights to reproduce the

copyrighted work in copies and to distribute copies of the copyrighted work to the public by sale

or other transfer of ownership, or by rental, lease, or lending. See 17 U.S.C. § 106.

Plaintiff’s allegations, set forth above, establish that Plaintiff is the exclusive holder of the

copyrighted Work 2 and that Defendant infringed that copyright by using and displaying the Work

on its Facebook page.

Damages

Under 17 U.S.C. § 504(b), a copyright owner is entitled to recover the actual damages

suffered as a result of the infringement. Actual damages are primarily measured by “the extent to

which the market value of the copyrighted work at the time of the infringement has been injured

2
Although the Work was registered more than five years after the Work’s creation, the non-appearing Defendant did
not challenge the validity of the certificate issued upon registration and the Court does not therefore have any basis
upon which to reject the validity of the certificate. See Southall v. Force Partners, LLC, 2021 WL 3883082, at *3
(N. D. Ill., 2021) (The Copyright Act “confers discretion on the court on how to treat a certificate obtained five
years after publication,” explaining that while the statute mandates a presumption of validity for pre-five-year
certificates, it does not forbid a presumption for post-five-year certificates).

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or destroyed by the infringement.” Fitzgerald Pub. Co. v. Baylor Pub. Co., 807 F.2d 1110, 1118

(2d Cir. 1986). Actual damages can also be measured by the revenue the plaintiff lost as a result

of the infringement in the form of lost sales or, as alleged here, lost licensing opportunities. Lorentz

v. Sunshine Health Prod., Inc., 2010 WL 11492992, at *4 (S.D. Fla. Sept. 7, 2010), report and

recommendation adopted, 2010 WL 11493070 (S.D. Fla. Nov. 15, 2010). Plaintiff may recover

the fair market value of the licensing fee that would have been charged had the work not been

infringed. See McCarthy v. Stollman, No. 06-CV-2613 (DAB) (DF), 2010 WL 11586609, at *10

(S.D.N.Y. Feb. 23, 2010).

In this vein, Plaintiff calculates its actual damages as the minimum fee which would have

been charged by Plaintiff to anyone wishing to display the Work – the value of a one-year

subscription to Plaintiff’s library of photographs – $11,988, multiplied by the three years Plaintiff

believes the Work was displayed for a total actual damages computation of $35,964.00. It is

difficult for the Court to conclude that the fair market value for the license of this single photograph

is identical to the fair market value of the license for the 20,000 photographs for which the licensing

fee would have been charged. Nor does the Court have any evidence that this number represents

the diminution in value of the Work as a result of the infringement. Indeed, the Court has no

evidence as to the value of the Work either pre- or post-infringement. Notwithstanding, the Court

recognizes that many district courts have accepted this analysis as an appropriate measure of actual

damages, given the Plaintiff’s business model of licensing a library of photographs rather than

individual photographs. See, e.g., Prepared Food Photos, Inc. v. Shadowbrook Farm LLC, No.

1:22-CV-00704 (LEK) (ATB), 2023 WL 4199412, at *6 (N.D.N.Y. June 27, 2023); Prepared

Food Photos, Inc. v. WaDaYaNeed, LLC, No. 1:22-CV-01270 (LEK) (ATB), 2023 WL 4234821,

at *5 (N.D.N.Y. June 28, 2023); Prepared Food Photos, Inc. v. Mikey’s Famous Marinades Corp.,

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No. 23-CV-1484 (JMA) (AYS), 2023 WL 4867457, at *3 (E.D.N.Y. July 31, 2023). Accordingly,

the Court determines the actual damages to be $35,964.00.

Notwithstanding, Plaintiff asserts that actual damages are insufficient in this default

situation and in light of Defendant’s alleged willful infringement, seeks, alternatively, statutory

damages in the amount of $71,928.00. Under § 504(c)(1), the owner of a copyright may elect to

recover statutory damages in lieu of actual damages. See 17 U.S.C. § 504(c)(1) (“[T]he copyright

owner may elect, at any time before final judgment is rendered, to recover, instead of actual

damages and profits, an award of statutory damages for all infringements involved in the action,

with respect to any one work, for which any one infringer is liable individually … in a sum of not

less than $750 or more than $30,000 as the court considers just.”). In a case where the infringement

“was committed willfully, 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). Willful infringement occurs when

“the defendant was actually aware of the infringing activity, or (2) that the defendant’s actions

were the result of ‘reckless disregard’ for, or ‘willful blindness’ to, the copyright holder’s rights.”

Island Software & Computer Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 263 (2d Cir. 2005).

“Moreover, this Court may infer that [a defendant] willfully infringed [a plaintiff’s] copyrights

because of [the defendant’s] default.” Arista Recs., Inc. v. Beker Enterprises, Inc., 298 F. Supp. 2d

1310, 1313 (S.D. Fla. 2003). Such an inference is not required, however. See Serio v. Skijor, USA,

Inc., No. 23-CV-438 (LJL), 2023 WL 8372894, at *4 (S.D.N.Y. 2023). And the allegations in the

Complaint that the infringement was willful is a legal conclusion which is not deemed admitted

by the default. See Granite Music Corp. v. Center Street Smoke House, Inc., 786 F.Supp.2d 716,

735 (W.D.N.Y. 2011) (admitting liability to all allegations in a complaint does not necessarily

equate to admitting that the infringement was willful). When awarding increased damages in the

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context of § 504(c)(2), “deterrence of future violations is a legitimate consideration” because

“defendants must not be able to sneer in the face of copyright owners and copyright laws.”

Cable/Home Communication Corp. v. Network Productions, 902 F.2d 829, 851 (11th Cir. 1990)

(internal citations and quotations omitted).

Preliminarily, the Court does not find that the infringement was willful and therefore caps

statutory damages at $30,000. Although permitted to infer willfulness from the default, the

circumstances here do not warrant such an inference. The Work was created approximately nine

years before it received a registration certificate which as noted supra, n.2, is not automatically

entitled to a presumption of validity. During those nine years, the Work may have been available

to the public at large through any number of mediums, to include prior publications and of course,

the Internet. Plaintiff does not assert otherwise. The Court has no way of knowing whether the

Work was possessed by the Defendant during the time that the Work did not have copyright

protection. The Court also has no evidence that the Work was clearly marked (or marked at all) as

being copyright protected at the time the Defendant came into possession of the Work or at any

time thereafter. The Plaintiff only asserts, on information and belief, that the Defendant found the

image on the Internet and copied it to its Facebook page. And while it was posted to the Facebook

page after the certificate of registration issued, that fact does not require the inference that

Defendant was “actually aware” of the infringing conduct given the somewhat unique facts

surrounding this Work and its registration. And while the Court recognizes that the failure of the

Defendant to appear has contributed to this dearth of information, a single posting of a then-twelve

year old photograph, for which copyright protection was nonexistent for nine of those twelve years,

defeats an otherwise permissible inference of willfulness.

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Insofar as the statutory damages are capped at $30,000, and insofar as the Plaintiff’s actual

damages, loosely calculated, are in excess of $30,000, the Court awards actual damages of

$35,964.00.

Costs

Plaintiff seeks a full award of costs. This is appropriate and the documented costs in the

amount of $494.25 are awarded. See 17 U.S.C. § 505.

Permanent Injunctive Relief

“Any court having jurisdiction of a civil action arising under this title may, subject to the

provisions of section 1498 of title 28, grant temporary and final injunctions on such terms as it

may deem reasonable to prevent or restrain infringement of a copyright.” 17 U.S.C. § 502(a).

Under this statutory standard, a plaintiff must prove two elements: “1) absent injunctive relief, it

will suffer irreparable harm, and 2) actual success on the merits.” Realsongs, Universal Music

Corp. v. 3A N. Park Ave. Rest Corp., 749 F. Supp. 2d 81, 93 (E.D.N.Y. 2010) (internal citations

and quotations omitted). “[I]rreparable harm is presumed where a party has established a prima

facie case of copyright infringement.” Id. And where a defendant has “failed to respond to ...

communications” from a plaintiff and has “fail[ed] to participate” in a lawsuit, that constitutes

further evidence that irreparable harm may result absent a permanent injunction. Id. Here, Plaintiff

has made a prima facie case of copyright infringement, and Defendant has failed to respond to

communications or appear in this suit. Plaintiff has therefore met the irreparable harm element.

And as discussed above, Plaintiff has actually succeeded on the merits of its claims.

Conclusion

Plaintiff’s Motion for Default Judgment, ECF No. 15, pursuant to Fed. R. Civ. P. 55(b) is

GRANTED. The Court awards damages in the amount of $35,964.00 and costs in the amount of

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$494.25, for a total award of $36,458.25. Judgment shall enter against Defendant and in favor of

Plaintiff in the amount of $36,458.25. Plaintiff is awarded post-judgment interest as permitted

under the law.

Further, a permanent injunction is entered against Defendant, its employees, agents,

officers, directors, attorneys, successors, affiliates, subsidiaries and assigns, and all those in active

concert and participation with Defendant, prohibiting it from (a) directly or indirectly infringing

Plaintiff's copyright in the Work or continuing to market, offer, sell, dispose of, license, lease,

transfer, publicly display, advertise, reproduce, develop, or manufacture any work derived or

copied from the Work or to participate or assist in any such activity; and (b) directly or indirectly

reproducing, displaying, distributing, otherwise using, or retaining any copy, whether in physical

or electronic form, of the Work.

The Clerk of Court is directed to enter judgment in accordance with this decision and close

this case.

SO ORDERED at Bridgeport, Connecticut, this 29th day of March 2024.

/s/ Kari A. Dooley

KARI A. DOOLEY
UNITED STATES DISTRICT JUDGE