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`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 1 of 19
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`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
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`
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`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 2 of 19
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`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
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`Shoshanna Group , Inc. ("Shoshanna Group") (collecti vely the
`
`"Defendants" ) , alleging direct copyright infringement in
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`violation of 17 U. S.C. § 106. The Defendants have cross - moved
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`for summary judgment under the same Rule to dismiss the
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`Plaintiff's complaint (the "Comp l aint " ) for copyr ight
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`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
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`copyright infringement in violat i on of 17 U.S.C. § 106. 1 On June
`
`29 , 2017, Plaintiff moved for summary judgment, and Defendants
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`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
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`
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`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 3 of 19
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`pursuant to this Court 's Order extending the deadline to file
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`motions until August 4, 2017 . The instant motions were heard and
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`marked fully submitted on August 16, 2017.
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`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
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`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
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`assets are i ts library and archive of celebrity photographs.
`
`Defendants Shoshanna Co ll ection and Shoshanna Group are a New
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`York-based retail company and the website operator of
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`www.shoshanna.com (the "Website " ), respectively.
`
`At issue here are two photographs, allegedly owned by
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`the Plaintiff, of the celebrity Emmy Rossum taken at the Chateau
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`Marmont Hotel in Hollywood, California on July 16, 2015
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`3
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`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 4 of 19
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`(collectively the "Rossum Photos" or the "Photos") . The
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`Plaintiff asserts that it registered the Rossum Photos with the
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`United States Copyright Office (the "USCO") on September 24 ,
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`2015, under Application No. 1-2734759362, and that the USCO
`
`approved the registration (the "Registration") that day. While
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`the Defendants do not deny that the Plaintiff successfully
`
`registered some photographs with the USCO, Defendants dispute
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`that the deposit copy of materials submitted to the USCO
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`contained the Rossum Photos.
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`The Rossum Photos were first published on or about
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`July 16, 2015 by E! Entertainment Online ("E! Entertainment"),
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`which paid FFN a license fee of $75 for the Photos. On October
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`7, 2015, FFN observed the Rossum Photos on Defendants' Website
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`at the following URLs: https://www.shoshanna.com/shop/world(cid:173)
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`of/cat/celebrities/ and https://www .shoshanna.com/shop/world(cid:173)
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`of/cat/press/. The parties do not dispute that an employee of
`
`one of the Defendants saved and uploaded the Rossum Photos to
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`the Website, that Defendants had complete control over the
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`Website, and that they actively reviewed and monitored the
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`content posted on the Website.
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`4
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`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 5 of 19
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`(
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`III. The Applicable Standard
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`Surmnary judgment is appropriate only where "there is
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`no genuine issue as to any material fact and .
`
`. the moving
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`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
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`party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 248
`
`(1986). The relevant inquiry on application for surmnary judgment
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`is "whether the evidence presents a sufficient disagreement to
`
`require submission to a jury or whether it is so one-sided that
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`one party must prevail as a matter of law."
`
`Id. at 251 - 52 . A
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`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
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`there be no genuine issue of material fact." Anderson, 477 U.S.
`
`at 247 -4 8 (emphasis in origina l ).
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`5
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`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 6 of 19
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`IV. The Plaintiff's Motion for Summary Judgment is Granted and
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`the Defendants' Cross-Motion is Denied
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`The Copyright Act of 1976 (the "Copyright Act " )
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`"grants copyright owners a bundle of exclusive rights, including
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`the rights to 'reproduce the copyrighted work in copies ' and 'to
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`prepare derivative works based upon the copyrighted work .'"
`
`Castle Rock Entm't, Inc. v . Carol Publ ' g Group, Inc., 150 F.3d
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`132, 1 37(2d Cir . 1998) (citing 1 7 U. S . C . § 106). To establish a
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`prima facie c l aim of direct infringement under the Copyright
`
`Act, two elements must be demonstrated: "(1) ownership of a
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`valid copyright; and (2) copying of constituent elements of the
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`work that are original. " Feist Pubs ., Inc. v . Rural Tel . Serv.
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`Co ., Inc., 499 U.S . 340 , 361 (1991) (cit ing Harper & Row,
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`Publishers, Inc. v . Nation Enterprises , 471 U. S . 539 , 556
`
`( 1985)) .
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`a. The Pl aintif f Has Established a Prima Facie Claim for
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`Di re ct Copyright Inf ringement
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`To bring a successfu l cla im for copyr ight
`
`infri ngement , the plaintiff must preliminari l y establish valid
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`ownership of the copyrighted work. See Castle Rock Entm't, Inc .
`
`150 F.3d at 137. In addition , "[ c]opyright registration is a
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`6
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`
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`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 7 of 19
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`Here, the Plaintiff registered a compilation of
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`photographs published between "Jul[y] 01, 2015 to Aug 31, 2015;
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`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
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`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
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`effectively cover a group of published photographs if the
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`following requirements are met: "(a) all the photographs are by
`
`the same photographer
`
`. '
`
`(b) all the photographs are
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`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
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`failed to satisfy any of these requirements. First, the
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`Registration provides that all the photographs are authored by
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`8
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`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 8 of 19
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`FameFlynet, Inc., in accordance with (a). See Pl.'s Br. Ex. F.
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`Second, all photographs within the compilation were published
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`between July and August 2015 pursuant to (b) . See id. Third, the
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`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
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`validity as provided for in 17 U.S.C. § 410(c) because the date
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`of first publication of any of the works in the compilation(cid:173)
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`August 31, 2015 -
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`is well within the five-year limit of the
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`USCO's grant of the Registration on September 24, 2015.
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`The Registration constitutes prima facie evidence of
`
`the validity of Plaintiff's copyright, shifting to the
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`Defendants the "heavy burden" of demonstrating the invalidity of
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`the copyright. See Jetmax Ltd., 2017 WL 3726756, at *3.
`
`"Generally speaking, the presumption of validity may be rebutted
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`'[w]here other evidence in the record casts doubt on the
`
`question.'" Fonar Corp. v. Domenick, 105 F.3d 99, 104 (2d Cir.
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`1997) (citing Durham Indus., Inc. v. Tomy Corp., 630 F.32d 905,
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`908 (2d Cir. 1980)
`
`(emphasis in original)). The Defendants claim
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`that the Registration issued by the USCO is invalid because
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`there is "not a single reference" in the Registration
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`9
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`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 9 of 19
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`specifically noting that it covers the Rossum Photos. Defs'.
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`Reply Br. 3. The Defendants sudmit no other evidence suggesting
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`the Registration's invalidity.
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`The Second Circuit has concluded that "[t]he Copyright
`
`Office has expertise to determine in the first instance whether
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`a filer has complied with the technical requirements for a
`
`registration certificate," and that "under this doctrine, the
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`presumption may be overcome only by
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`'proof of deliberate
`
`misrepresentation.'" Fonar Corp., 105 F.3d at 105 (citing
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`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,
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`(ii) the inaccuracies were
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`'willful or deliberate,' and (iii)
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`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
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`FFN has either defrauded or made any deliberate
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`misrepresentation to the Copyright Office.
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`10
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`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 10 of 19
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`As such, the presumption of the Registration's
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`validity stands, and the Plaintiff's Registration establishes
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`its ownership of the Rossum Photos.
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`The second element of the infringement analysis turns
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`on two requirements - whether the Defendants (i) actually copied
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`and (ii) improperly appropriated the Photos. See Laureyssens v.
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`Idea Group, Inc., 964 F.2d 131, 139-140 (2d Cir. 1992); see also
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`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)
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`'that such copying was illegal because a
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`substantial similarity exists between the defendants'
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`[photographs] and the protectable elements of the plaintiff's
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`[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,
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`and the Defendants do not dispute, the following facts: "FFN's
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`11
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`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 11 of 19
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`two (2) photographs were also individually saved by Defendants
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`at the following URLS
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`.
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`.," SUF ! 23 , and "The Rossum Photos
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`were uploaded to the Website by an employee of Defendants," id.
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`! 24. The Defendants assert that they "merely re-published the
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`Rossum Photos in conformity with the secondary dissemination
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`rights available from E! Entertainment Online .
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`." Defs.'
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`Reply Br. 2. They argue that when E! Entertainment published the
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`Rossum Photos on its website pursuant to E! Entertainment's
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`license with the Plaintiff, website visi t ors -
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`including the
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`Defendants - gained "the unfettered ability" to republish the
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`Photos "throughout the Internet, without any restrictions
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`." Id. 1. In sum, the Defendants saved the Photos from E!
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`Entertainment's website to other URLs, taking the entirety of
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`the copyrighted works. Given these undisputed facts, the
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`Defendants have conceded actual copying of the Rossum Photos for
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`purposes of this motion.
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`To prove improper appropriation, the plaintiff "must
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`also show that substantial similarity exists with respect to
`
`protectible elements of the works." Arden, 908 F. Supp. at 1257.
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`"[C] ourts employ the ' ordinary observer test,' which asks
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`'whether the ordinary observer , unless he set out t o detect the
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`disparities [between the two works], would be disposed to
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`overlook them, and regard their aesthetic appeal as the same.'"
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`12
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`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 12 of 19
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`M. Lady, LLC v . AJI, Inc., No. 06-Civ-0194(HBP), 2007 WL
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`2728711 , at *6 (Sept. 19, 2007) . A side-by-side comparison
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`demonstrates that, even if there are any disparities between the
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`Plaintiff's Rossum Photos and those pub lished by the Defendants
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`- which neither party alleges -
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`there is no doubt that an
`
`ordinary observer would not notice them.
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`The Defendants have actually and improperly copied the
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`Plaintiff's works and have accordingly infringed the Plaintiff's
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`copyright absent a showing of a val i d license for such use.
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`b . The Defendants Have Not Shown the Existence of a Valid
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`Li cense Permitting Republication of the Rossum Photos
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`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
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`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
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`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 13 of 19
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`republication mirrors the permitted uses granted to Plaintiff's
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`licensees, [so] Defendants' [sic] shared the Rossum Photos in a
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`permitted manner." Defs.' Br . 6. The Defendants argue that when
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`E! Entertainment published the Rossum Photos on its website
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`pursuant to its license with the Plaintiff , website visitors
`
`gained "the unfettered ability" to republish the Photos
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`"throughout the Internet, without any restrictions .
`
`ff
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`Defs.' Reply Br. 1. The Defendants assert that they "merely re(cid:173)
`
`published the Rossum Photos in conformity with the secondary
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`dissemination rights available from E! Entertainment Online .
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`" Id. 2.
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`The Defendants have not come forward with the alleged
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`E! Entertainment license they claim as the basis of their lawful
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`republication of the Photos or any legal authorities in support
`
`of their position. As the Defendants bear the burden of
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`production, see Agence France Press, 769 F. Supp. 2d at 302 ,
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`they have failed to demonstrate that their publication of the
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`Rossum Photos might be permitted pursuant to a license.
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`For the aforementioned reasons, the Defendants have
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`infringed FFN's copyright in the Rossum Photos.
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`14
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`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 14 of 19
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`c. The Plaintiff is Entitled to Statutory Damages
`
`A copyright owner whose rights have been violated may
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`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
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`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
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`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
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`infringer "was not aware and had no reason to believe that" its
`
`acts "constituted an infringement," the Court may "reduce the
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`award of statutory damages to a sum of not less than $200." Id.
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`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
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`(S.D.N.Y. July 31, 2007) (citing 17 U.S.C. § 504(c) (1)) (internal
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`quotation marks omitted).
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`15
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`"
`•
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`.,
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`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 15 of 19
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`A court has "broad discretion " in awarding statutory
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`damages within the statutory limits. Fitzgerald Publ'g Co . v .
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`Baylor Publ'g Co. , 807 F.2d 1110 , 1116 (2d Cir . 1986). I n
`
`assessing statutory damages , courts may cons i der the following
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`factors: " ( l ) the infringer's state of mind;
`
`(2) the expenses
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`saved, and profits earned, by the infringer; (3) the revenue
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`lost by the copyright ho l der ;
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`(4) the deterrent effect on the
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`infringer and third part i es;
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`(5) the infringer ' s cooperating in
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`providing evidence concern ing the value of the infringing
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`material; and (6) the conduct and attitude of the parties."
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`Erickson Prods ., Inc. v. Only Websites, Inc., No. 12-Civ-
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`1693(PGG) (KNF), 2016 WL 1337277, at *2
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`(S . D. N.Y . Mar. 31 , 2016)
`
`(citing N.A. S . Impor. Corp. v . Chenson Enter., Inc., 968 F.2d
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`250 , 252 -5 3 (2d Cir . 1992)); see also RSO Records , Inc. v . Peri,
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`596 F. Supp. 849 , 862
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`(S . D. N.Y . 1984) (noting that the
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`" 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
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`'reckless disregard' for, or ' wi llfu l b lindness ' to, the
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`copyright holder ' s rights." Island Software & Computer Serv.,
`
`Inc. v . Microsoft Corp. , 413 F.3d 257 , 263 (2d Cir . 2005) . As
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`16
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`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 16 of 19
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`other courts have noted, "trebling the licensing fee .
`
`is in
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`line with the general approach taken by courts" in determining
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`statutory damages. Erickson Prods., Inc. , 2016 WL 1337277 , at
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`*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
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`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.
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`IML Corp. , 867 F. Supp. 565, 570 (E.D. Mich . 1994) (finding that
`
`in cases of willful copyright infringement, a "survey of
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`statutory awards throughout the country .
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`indicate [ s] that .
`
`. courts typically award three times the amount of a properly
`
`purchased license for each infringement") .
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`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."
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`Pl. ' s Reply Br . 19. The Defendants object to this damages
`
`17
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`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 17 of 19
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`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.
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`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
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`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
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`18
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`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 18 of 19
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`willful infringement the Copyright Act mandates statutory
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`damages "
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`. in a sum of not less than $750." See id. §
`
`504(c) (1). Therefore, the Court approves an award of $750 to the
`
`Plaintiff.
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`d. The Plaintiff is Entitled to Reasonable Attorney's Fees
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`Finally, the Court considers the Plaintiff's request
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`for reimbursement of the costs and attorney's fees incurred in
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`connection with this action. See Pl.'s Br. 1. Section 505 of the
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`Copyright Act authorizes the Court, at its discretion, to award
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`reasonable attorney's fees and costs to the prevailing party so
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`long as the Plaintiff registered the copyright prior to the
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`commencement of the infringement. 17 U.S.C. § 505; see Levine v.
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`Landy, 832 F. Supp. 2d 176, 184 (S.D.N.Y. 2011). In a copyright
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`action, the court exercises this discretion by weighing factors
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`such as "frivolousness, motivation, objective unreasonableness
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`(both in the factual and in the legal components of the case)
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`and the need in particular circumstances to advance
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`considerations of compensation and deterrence." Kirtsaeng v.
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`John Wiley & Sons, Inc., 136 S. Ct. 1979, 1985 (2016). The
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`purpose of fee awards under Section 505 is to "'encourage the
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`types of lawsuits that promote' the purposes of the Copyright
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`Act such as 'encouraging and rewarding authors' creations while
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`19
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`
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`,--
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`Case 1:16-cv-07645-RWS Document 41 Filed 10/02/17 Page 19 of 19
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`also enabling others to build on that work . '" BWP Media USA,
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`Inc., 2016 WL 8309676 , at *2 (citing Kirtsaeng , 126 S . Ct. at
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`198 6) .
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`The Plaintiff ' s request for reasonable attorney ' s fees
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`and costs is granted as it promotes the stated purposes of the
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`Copyr i ght Act. Specifica l ly , shifting fees here serves to
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`encourage and reward innovators for their contributions in the
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`march toward progress rather than burdening them with the costs
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`of defending their protected works. The Plaintiff ' s motion for
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`reasonable costs and attorney ' s fees is granted.
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`V .
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`Conclusion
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`For the foregoing reasons, Pl aintiff ' s motion for summary
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`judgment is granted , and Defendants ' cross - motion for summary
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`judgment is denied .
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`It is so ordered.
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`New York , NY
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`September-;J..., l ' 2017
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`U.S . D . J .
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`20
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