throbber
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`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 1 of 19
`
`16 Civ. 7645
`
`OPINION
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`-------------------------------------x
`FAMEFLYNET,
`INC.,
`
`Plaintiff,
`
`-against-
`
`THE SHOSHANNA COLLECTION, LLC
`AND SHOSHANNA GROUP,
`INC.,
`
`Defendants.
`-------------------------------------x
`
`A P P E A R A N C E S:
`
`Attorneys for Plaintiff
`
`SANDERS LAW, PLLC
`100 Garden City Plaza, Suite 500
`Garden City, New York 11530
`By: Craig B. Sanders, Esq.
`Jonathan M. Cader, Esq .
`
`Attorneys for Defendants
`
`PRYOR CASHMAN LLP
`7 Times Square
`New York, New York 10036
`By: Robert J. deBrauwere, Esq.
`Ryan S. Klarberg, Esq.
`
`1
`
`

`

`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 2 of 19
`
`Sweet, D. J.
`
`Plaintiff FameFlynet, Inc.
`
`( "FFN" or the "Plaintiff") ,
`
`a photojournalism corporation , has moved pursuant to Federal
`
`Rule of Civil Procedure 56 for summary judgment against
`
`defendants Shoshanna Collection ("Shoshanna Collection") and
`
`Shoshanna Group , Inc. ("Shoshanna Group") (collecti vely the
`
`"Defendants" ) , alleging direct copyright infringement in
`
`violation of 17 U. S.C. § 106. The Defendants have cross - moved
`
`for summary judgment under the same Rule to dismiss the
`
`Plaintiff's complaint (the "Comp l aint " ) for copyr ight
`
`infringement. Based on the facts and conclus i ons set forth
`
`below, the summary judgment motion of the Plaintiff is granted
`I
`and the cross -motion of the Defendants is denied.
`
`I.
`
`Prior Proceedings
`
`Plaintiff filed a complaint on September 29 , 2016
`
`against the Defendants, alleging c laims of direct and vicarious
`
`copyright infringement in violat i on of 17 U.S.C. § 106. 1 On June
`
`29 , 2017, Plaintiff moved for summary judgment, and Defendants
`
`timely cross -moved for summary judgment on Julx 14, 2017
`
`1 Although the Plaintiff alleged vicarious copyright infringement in the
`Complaint , it onl y submitted briefs in support o f the direct infringement
`claim , so the Court considers only tha t claim on this motion.
`
`2
`
`

`

`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 3 of 19
`
`pursuant to this Court 's Order extending the deadline to file
`
`motions until August 4, 2017 . The instant motions were heard and
`
`marked fully submitted on August 16, 2017.
`
`II. The Facts
`
`The facts have been set forth in Plaintiff's Statement
`
`of Undisputed Facts ("SUF") per Local Civil Rule 56.l(a) and
`
`Defendants' Local Rule 56.1 Responsive Statement of Material
`
`Facts and are not in dispute except as noted below.
`
`The Plaintiff is FameFlynet, Inc., a California -based
`
`photojournalism corporation that provides entertainment-related
`
`goods and services. FFN owns the rights to a multitude of
`
`photographs, primarily featuring celebrities, which it licenses
`
`to online and print publications for profit. Plaintiff's primary
`
`assets are i ts library and archive of celebrity photographs.
`
`Defendants Shoshanna Co ll ection and Shoshanna Group are a New
`
`York-based retail company and the website operator of
`
`www.shoshanna.com (the "Website " ), respectively.
`
`At issue here are two photographs, allegedly owned by
`
`the Plaintiff, of the celebrity Emmy Rossum taken at the Chateau
`
`Marmont Hotel in Hollywood, California on July 16, 2015
`
`3
`
`

`

`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 4 of 19
`
`(collectively the "Rossum Photos" or the "Photos") . The
`
`Plaintiff asserts that it registered the Rossum Photos with the
`
`United States Copyright Office (the "USCO") on September 24 ,
`
`2015, under Application No. 1-2734759362, and that the USCO
`
`approved the registration (the "Registration") that day. While
`
`the Defendants do not deny that the Plaintiff successfully
`
`registered some photographs with the USCO, Defendants dispute
`
`that the deposit copy of materials submitted to the USCO
`
`contained the Rossum Photos.
`
`The Rossum Photos were first published on or about
`
`July 16, 2015 by E! Entertainment Online ("E! Entertainment"),
`
`which paid FFN a license fee of $75 for the Photos. On October
`
`7, 2015, FFN observed the Rossum Photos on Defendants' Website
`
`at the following URLs: https://www.shoshanna.com/shop/world(cid:173)
`
`of/cat/celebrities/ and https://www .shoshanna.com/shop/world(cid:173)
`
`of/cat/press/. The parties do not dispute that an employee of
`
`one of the Defendants saved and uploaded the Rossum Photos to
`
`the Website, that Defendants had complete control over the
`
`Website, and that they actively reviewed and monitored the
`
`content posted on the Website.
`
`4
`
`

`

`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 5 of 19
`
`(
`
`III. The Applicable Standard
`
`Surmnary judgment is appropriate only where "there is
`
`no genuine issue as to any material fact and .
`
`. the moving
`
`party is entitled to a judgment as a matter of law." Fed. R.
`
`Civ. P. 56(c). A dispute is "genuine" if "the evidence is such
`
`that a reasonable jury could return a verdict for the nonmoving
`
`party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 248
`
`(1986). The relevant inquiry on application for surmnary judgment
`
`is "whether the evidence presents a sufficient disagreement to
`
`require submission to a jury or whether it is so one-sided that
`
`one party must prevail as a matter of law."
`
`Id. at 251 - 52 . A
`
`court is not charged with weighing the evidence and determining
`
`its truth, but with determining whether there is a genuine issue
`
`for trial. Westinghouse Elec. Corp. v . N . Y . C. Transit Auth., 735
`
`F. Supp. 1205, 1212 (S.D .N. Y. 1990) (quoting Anderson, 477 U.S.
`
`at 249). "[T]he mere existence of some alleged factual dispute
`
`between the parties will not defeat an otherwise properly
`
`supported motion for surmnary judgment; the requirement is that
`
`there be no genuine issue of material fact." Anderson, 477 U.S.
`
`at 247 -4 8 (emphasis in origina l ).
`
`5
`
`

`

`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 6 of 19
`
`IV. The Plaintiff's Motion for Summary Judgment is Granted and
`
`the Defendants' Cross-Motion is Denied
`
`The Copyright Act of 1976 (the "Copyright Act " )
`
`"grants copyright owners a bundle of exclusive rights, including
`
`the rights to 'reproduce the copyrighted work in copies ' and 'to
`
`prepare derivative works based upon the copyrighted work .'"
`
`Castle Rock Entm't, Inc. v . Carol Publ ' g Group, Inc., 150 F.3d
`
`132, 1 37(2d Cir . 1998) (citing 1 7 U. S . C . § 106). To establish a
`
`prima facie c l aim of direct infringement under the Copyright
`
`Act, two elements must be demonstrated: "(1) ownership of a
`
`valid copyright; and (2) copying of constituent elements of the
`
`work that are original. " Feist Pubs ., Inc. v . Rural Tel . Serv.
`
`Co ., Inc., 499 U.S . 340 , 361 (1991) (cit ing Harper & Row,
`
`Publishers, Inc. v . Nation Enterprises , 471 U. S . 539 , 556
`
`( 1985)) .
`
`a. The Pl aintif f Has Established a Prima Facie Claim for
`
`Di re ct Copyright Inf ringement
`
`To bring a successfu l cla im for copyr ight
`
`infri ngement , the plaintiff must preliminari l y establish valid
`
`ownership of the copyrighted work. See Castle Rock Entm't, Inc .
`
`150 F.3d at 137. In addition , "[ c]opyright registration is a
`
`6
`
`

`

`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 7 of 19
`
`Here, the Plaintiff registered a compilation of
`
`photographs published between "Jul[y] 01, 2015 to Aug 31, 2015;
`
`updated daily" with the USCO, under the title "FameFlynet
`
`Pictures Database" and Registration Number "VA 1-971-327." Pl's.
`
`Br. Ex. F. The Defendants concede that Plaintiff effectively
`
`registered some compilation of photographs, but contest that the
`
`Rossum Photos are included within this compilation. See Defs'.
`
`Reply Br. 3 ("There is not a single reference in the
`
`registration certificate supporting that the registration covers
`
`the Rossum Photographs.").
`
`The USCO provides that a single registration can
`
`effectively cover a group of published photographs if the
`
`following requirements are met: "(a) all the photographs are by
`
`the same photographer
`
`. '
`
`(b) all the photographs are
`
`published in the same calendar year; and (c) all the photographs
`
`have the same copyright claimant." U.S. Copyright Office, Group
`
`Registration of Published Photographs, FL-124 (2012).
`
`Here, the Defendants have neither made any suggestion
`
`nor provided any evidence suggesting that the Plaintiff has
`
`failed to satisfy any of these requirements. First, the
`
`Registration provides that all the photographs are authored by
`
`8
`
`

`

`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 8 of 19
`
`FameFlynet, Inc., in accordance with (a). See Pl.'s Br. Ex. F.
`
`Second, all photographs within the compilation were published
`
`between July and August 2015 pursuant to (b) . See id. Third, the
`
`Registration provides that FameFlynet, Inc. is the claimant to
`
`all the photographs pursuant to (c). See id. Accordingly there
`
`is no reason to believe the single registration for the
`
`compilation of the Plaintiff's photographs is invalid. Moreover,
`
`the Registration is entitled to a prima facie presumption of
`
`validity as provided for in 17 U.S.C. § 410(c) because the date
`
`of first publication of any of the works in the compilation(cid:173)
`
`August 31, 2015 -
`
`is well within the five-year limit of the
`
`USCO's grant of the Registration on September 24, 2015.
`
`The Registration constitutes prima facie evidence of
`
`the validity of Plaintiff's copyright, shifting to the
`
`Defendants the "heavy burden" of demonstrating the invalidity of
`
`the copyright. See Jetmax Ltd., 2017 WL 3726756, at *3.
`
`"Generally speaking, the presumption of validity may be rebutted
`
`'[w]here other evidence in the record casts doubt on the
`
`question.'" Fonar Corp. v. Domenick, 105 F.3d 99, 104 (2d Cir.
`
`1997) (citing Durham Indus., Inc. v. Tomy Corp., 630 F.32d 905,
`
`908 (2d Cir. 1980)
`
`(emphasis in original)). The Defendants claim
`
`that the Registration issued by the USCO is invalid because
`
`there is "not a single reference" in the Registration
`
`9
`
`

`

`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 9 of 19
`
`specifically noting that it covers the Rossum Photos. Defs'.
`
`Reply Br. 3. The Defendants sudmit no other evidence suggesting
`
`the Registration's invalidity.
`
`The Second Circuit has concluded that "[t]he Copyright
`
`Office has expertise to determine in the first instance whether
`
`a filer has complied with the technical requirements for a
`
`registration certificate," and that "under this doctrine, the
`
`presumption may be overcome only by
`
`'proof of deliberate
`
`misrepresentation.'" Fonar Corp., 105 F.3d at 105 (citing
`
`Whimsicality, Inc., 891 F.2d at 455). To prevail on an assertion
`
`of fraud the Defendants must demonstrate that "(i) the copyright
`
`application contains one or more factual misrepresentations,
`
`(ii) the inaccuracies were
`
`'willful or deliberate,' and (iii)
`
`the Copyright Office relied on the misrepresentations." Id.
`
`(citing Whimsicality, Inc. v. Rubie's Costume Co., 891 F.2d 452,
`
`455 (2d Cir. 1989)). The Fonar Court found that the defendant
`
`did not overcome the presumption of the registration's validity
`
`where it made no allegations that the plaintiff defrauded or
`
`made deliberate misrepresentations to the USCO. Fonar Corp., 105
`
`F.3d at 105. Here, the Defendants likewise have not alleged that
`
`FFN has either defrauded or made any deliberate
`
`misrepresentation to the Copyright Office.
`
`10
`
`

`

`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 10 of 19
`
`As such, the presumption of the Registration's
`
`validity stands, and the Plaintiff's Registration establishes
`
`its ownership of the Rossum Photos.
`
`The second element of the infringement analysis turns
`
`on two requirements - whether the Defendants (i) actually copied
`
`and (ii) improperly appropriated the Photos. See Laureyssens v.
`
`Idea Group, Inc., 964 F.2d 131, 139-140 (2d Cir. 1992); see also
`
`Yurman Design, Inc. v. Golden Treasure Imps., Inc., 275 F. Supp.
`
`2d 506, 516 (S.D.N.Y. Aug. 5, 2003)
`
`("To prevail on its motion
`
`for summary judgment for copyright infringement, plaintiff must
`
`also show that no genuine issue of material fact exists as to
`
`whether defendants (1)
`
`'have actually copied [plaintiff's]
`
`works' and (2)
`
`'that such copying was illegal because a
`
`substantial similarity exists between the defendants'
`
`[photographs] and the protectable elements of the plaintiff's
`
`[photographs]'").
`
`"Actual copying may be established by direct evidence
`
`or by proof of defendant's access to plaintiff's work and
`
`sufficient similarity between the works to support an inference
`
`of copying." Arden v. Columbia Pictures Indus., Inc., 908 F.
`
`Supp. 1248, 1257 (S.D.N.Y. 1995). Here, the Plaintiff asserts,
`
`and the Defendants do not dispute, the following facts: "FFN's
`
`11
`
`

`

`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 11 of 19
`
`two (2) photographs were also individually saved by Defendants
`
`at the following URLS
`
`.
`
`.," SUF ! 23 , and "The Rossum Photos
`
`were uploaded to the Website by an employee of Defendants," id.
`
`! 24. The Defendants assert that they "merely re-published the
`
`Rossum Photos in conformity with the secondary dissemination
`
`rights available from E! Entertainment Online .
`
`." Defs.'
`
`Reply Br. 2. They argue that when E! Entertainment published the
`
`Rossum Photos on its website pursuant to E! Entertainment's
`
`license with the Plaintiff, website visi t ors -
`
`including the
`
`Defendants - gained "the unfettered ability" to republish the
`
`Photos "throughout the Internet, without any restrictions
`
`." Id. 1. In sum, the Defendants saved the Photos from E!
`
`Entertainment's website to other URLs, taking the entirety of
`
`the copyrighted works. Given these undisputed facts, the
`
`Defendants have conceded actual copying of the Rossum Photos for
`
`purposes of this motion.
`
`To prove improper appropriation, the plaintiff "must
`
`also show that substantial similarity exists with respect to
`
`protectible elements of the works." Arden, 908 F. Supp. at 1257.
`
`"[C] ourts employ the ' ordinary observer test,' which asks
`
`'whether the ordinary observer , unless he set out t o detect the
`
`disparities [between the two works], would be disposed to
`
`overlook them, and regard their aesthetic appeal as the same.'"
`
`12
`
`

`

`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 12 of 19
`
`M. Lady, LLC v . AJI, Inc., No. 06-Civ-0194(HBP), 2007 WL
`
`2728711 , at *6 (Sept. 19, 2007) . A side-by-side comparison
`
`demonstrates that, even if there are any disparities between the
`
`Plaintiff's Rossum Photos and those pub lished by the Defendants
`
`- which neither party alleges -
`
`there is no doubt that an
`
`ordinary observer would not notice them.
`
`The Defendants have actually and improperly copied the
`
`Plaintiff's works and have accordingly infringed the Plaintiff's
`
`copyright absent a showing of a val i d license for such use.
`
`b . The Defendants Have Not Shown the Existence of a Valid
`
`Li cense Permitting Republication of the Rossum Photos
`
`Even where a plaintiff has demonstrated both ownership
`
`and infringement, "the existence of a license is a valid defense
`
`to an infringement claim ." Agence France Presse v . Morel, 769 F.
`
`Supp. 2d 295 , 302
`
`(S .D.N. Y. 2011) . "Where the dispute turns on
`
`whether a license is held by the accused infringer, the
`
`defendant bears the burden to come forward with evidence of a
`
`license." Id. at 302 (interna l quotations omitted) .
`
`The Defendants assert that their republication of the
`
`Rossum Photos does not violate the Copyright Act " because [such]
`
`13
`
`

`

`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 13 of 19
`
`republication mirrors the permitted uses granted to Plaintiff's
`
`licensees, [so] Defendants' [sic] shared the Rossum Photos in a
`
`permitted manner." Defs.' Br . 6. The Defendants argue that when
`
`E! Entertainment published the Rossum Photos on its website
`
`pursuant to its license with the Plaintiff , website visitors
`
`gained "the unfettered ability" to republish the Photos
`
`"throughout the Internet, without any restrictions .
`
`ff
`
`Defs.' Reply Br. 1. The Defendants assert that they "merely re(cid:173)
`
`published the Rossum Photos in conformity with the secondary
`
`dissemination rights available from E! Entertainment Online .
`
`" Id. 2.
`
`The Defendants have not come forward with the alleged
`
`E! Entertainment license they claim as the basis of their lawful
`
`republication of the Photos or any legal authorities in support
`
`of their position. As the Defendants bear the burden of
`
`production, see Agence France Press, 769 F. Supp. 2d at 302 ,
`
`they have failed to demonstrate that their publication of the
`
`Rossum Photos might be permitted pursuant to a license.
`
`For the aforementioned reasons, the Defendants have
`
`infringed FFN's copyright in the Rossum Photos.
`
`14
`
`

`

`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 14 of 19
`
`c. The Plaintiff is Entitled to Statutory Damages
`
`A copyright owner whose rights have been violated may
`
`elect to recover either statutory damages or actual damages and
`
`profits. 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
`
`in a sum of not less than $750 or more than $30,000
`
`as the court considers just."). If this Court determines that
`
`the Defendant's infringement was willful, it may, in its
`
`discretion, enhance the statutory damages award up to $150,000
`
`per infringed work. See id. § 504 (c) (2). Alternatively, if the
`
`infringer "was not aware and had no reason to believe that" its
`
`acts "constituted an infringement," the Court may "reduce the
`
`award of statutory damages to a sum of not less than $200." Id.
`
`For the purposes of calculating statutory damages, the Copyright
`
`Act provides that one compilation "constitutes one work." Jett
`
`v. Ficara, No. 04 Civ. 9466(RMB) (HBP), 2007 WL 2197834, at *8
`
`(S.D.N.Y. July 31, 2007) (citing 17 U.S.C. § 504(c) (1)) (internal
`
`quotation marks omitted).
`
`15
`
`

`

`"
`•
`
`.,
`
`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 15 of 19
`
`A court has "broad discretion " in awarding statutory
`
`damages within the statutory limits. Fitzgerald Publ'g Co . v .
`
`Baylor Publ'g Co. , 807 F.2d 1110 , 1116 (2d Cir . 1986). I n
`
`assessing statutory damages , courts may cons i der the following
`
`factors: " ( l ) the infringer's state of mind;
`
`(2) the expenses
`
`saved, and profits earned, by the infringer; (3) the revenue
`
`lost by the copyright ho l der ;
`
`(4) the deterrent effect on the
`
`infringer and third part i es;
`
`(5) the infringer ' s cooperating in
`
`providing evidence concern ing the value of the infringing
`
`material; and (6) the conduct and attitude of the parties."
`
`Erickson Prods ., Inc. v. Only Websites, Inc., No. 12-Civ-
`
`1693(PGG) (KNF), 2016 WL 1337277, at *2
`
`(S . D. N.Y . Mar. 31 , 2016)
`
`(citing N.A. S . Impor. Corp. v . Chenson Enter., Inc., 968 F.2d
`
`250 , 252 -5 3 (2d Cir . 1992)); see also RSO Records , Inc. v . Peri,
`
`596 F. Supp. 849 , 862
`
`(S . D. N.Y . 1984) (noting that the
`
`" statutory damages should bear some relation to actual damages
`
`suffered ." ).
`
`To prove willfulness, "the plaintiff must show (1 )
`
`that the defendant was actually aware of the infringing
`
`activity , or (2) that the defendant's act i ons were the result of
`
`'reckless disregard' for, or ' wi llfu l b lindness ' to, the
`
`copyright holder ' s rights." Island Software & Computer Serv.,
`
`Inc. v . Microsoft Corp. , 413 F.3d 257 , 263 (2d Cir . 2005) . As
`
`16
`
`

`

`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 16 of 19
`
`other courts have noted, "trebling the licensing fee .
`
`is in
`
`line with the general approach taken by courts" in determining
`
`statutory damages. Erickson Prods., Inc. , 2016 WL 1337277 , at
`
`*3; see also Broad. Music, Inc . v. Prana Hospitality, Inc. , 158
`
`F. Supp. 3d 184 , 198 (S.D . N.Y . 2016)
`
`(noting that "Second
`
`Circuit case law
`
`. reflects that courts in this Circuit
`
`common l y award , in cases of non - innocent infringement , statutory
`
`damages of between three and five times the cost of the
`
`licensing fees the defendant would have paid"); Sailor Music v.
`
`IML Corp. , 867 F. Supp. 565, 570 (E.D. Mich . 1994) (finding that
`
`in cases of willful copyright infringement, a "survey of
`
`statutory awards throughout the country .
`
`indicate [ s] that .
`
`. courts typically award three times the amount of a properly
`
`purchased license for each infringement") .
`
`The Plaintiff here seeks a sum total of $25 , 000 in
`
`statutory damages and asks the Court to adjust this award up to
`
`$150,000 upon a finding of willful infringement . See Pl .' s Br.
`
`11 . The Plaintiff supports this suggested figure by stating that
`
`this "should provide Defendants with ample reason not [to]
`
`continue to infringe on content creators rights, " and "any
`
`smaller award would likely fail to impart the necessary message
`
`and , therefore, fail to support the goals of the Copyright Act."
`
`Pl. ' s Reply Br . 19. The Defendants object to this damages
`
`17
`
`

`

`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 17 of 19
`
`recorrunendation, arguing that "even if there were a finding in
`
`favor of Plaintiff,
`
`the customary damage award would
`
`entitle Plaintiff to $225 (i.e., three times Plaintiff's highest
`
`license fee of $75) ." Defs.' Reply Br. 4. The parties do not
`
`dispute that the highest license fee for the Photos was $75 and
`
`was provided by E! Entertainment. See SUF ~ 21; Pl.'s Br. 5.
`
`The Plaintiff's rather arbitrary request for $25,000
`
`in statutory damages is inconsistent with the general approach
`
`of trebling the highest licensee fee paid for use of the works.
`
`See Erickson Prods., Inc., 2016 WL 1337277, at *3. Based on the
`
`undisputed facts that the Defendants' knowingly saved the Photos
`
`and then uploaded them to the Website, which they completely
`
`controlled and actively monitored, the Defendants' willfully
`
`infringed the copyright. See SUF ~~ 22-23, 24-28. However,
`
`trebling the $75 licensee fee to $225 in accordance with this
`
`Circuit's 'willful infringement' case law still falls short of
`
`the mandatory minimum statutory damages of $750 under the
`
`Copyright Act. See 17 U.S.C. § 504 (c ) (1). Absent a showing that
`
`the "infringer was not aware and had no reason to believe that
`
`his or her acts constituted an infringement of copyright,"
`
`sections 504(c) (1) and (2) provide that the Court lacks the
`
`discretion to "reduce the award of statutory damages to a sum of
`
`not less than $200." Id. § 504(c) (1 ) -(2). Upon the finding of
`
`18
`
`

`

`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 18 of 19
`
`willful infringement the Copyright Act mandates statutory
`
`damages "
`
`. in a sum of not less than $750." See id. §
`
`504(c) (1). Therefore, the Court approves an award of $750 to the
`
`Plaintiff.
`
`d. The Plaintiff is Entitled to Reasonable Attorney's Fees
`
`Finally, the Court considers the Plaintiff's request
`
`for reimbursement of the costs and attorney's fees incurred in
`
`connection with this action. See Pl.'s Br. 1. Section 505 of the
`
`Copyright Act authorizes the Court, at its discretion, to award
`
`reasonable attorney's fees and costs to the prevailing party so
`
`long as the Plaintiff registered the copyright prior to the
`
`commencement of the infringement. 17 U.S.C. § 505; see Levine v.
`
`Landy, 832 F. Supp. 2d 176, 184 (S.D.N.Y. 2011). In a copyright
`
`action, the court exercises this discretion by weighing factors
`
`such as "frivolousness, motivation, objective unreasonableness
`
`(both in the factual and in the legal components of the case)
`
`and the need in particular circumstances to advance
`
`considerations of compensation and deterrence." Kirtsaeng v.
`
`John Wiley & Sons, Inc., 136 S. Ct. 1979, 1985 (2016). The
`
`purpose of fee awards under Section 505 is to "'encourage the
`
`types of lawsuits that promote' the purposes of the Copyright
`
`Act such as 'encouraging and rewarding authors' creations while
`
`19
`
`

`

`,--
`
`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 19 of 19
`
`also enabling others to build on that work . '" BWP Media USA,
`
`Inc., 2016 WL 8309676 , at *2 (citing Kirtsaeng , 126 S . Ct. at
`
`198 6) .
`
`The Plaintiff ' s request for reasonable attorney ' s fees
`
`and costs is granted as it promotes the stated purposes of the
`
`Copyr i ght Act. Specifica l ly , shifting fees here serves to
`
`encourage and reward innovators for their contributions in the
`
`march toward progress rather than burdening them with the costs
`
`of defending their protected works. The Plaintiff ' s motion for
`
`reasonable costs and attorney ' s fees is granted.
`
`V .
`
`Conclusion
`
`For the foregoing reasons, Pl aintiff ' s motion for summary
`
`judgment is granted , and Defendants ' cross - motion for summary
`
`judgment is denied .
`
`It is so ordered.
`
`New York , NY
`
`September-;J..., l ' 2017
`
`U.S . D . J .
`
`20
`
`

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