United States District Court, E.D. Tennessee, Knoxville
REPORT AND RECOMMENDATION
C. POPLIN, UNITED STATES MAGISTRATE JUDGE
case is before the undersigned pursuant to 28 U.S.C. Â§ 636,
the Rules of this Court, and the referral Order [Doc. 95] of
the District Judge.
before the Court is Plaintiff's Motion for Default
Judgment Against Defendants Wenn Limited and USA
Entertainment News, Inc. [Doc. 93]. On October 16, 2018, the
undersigned ordered Defendants to appear before the Court on
November 9, 2018, to show cause why a default judgment should
not be entered. [Doc. 97]. On November 9, 2018, Attorney Dale
Quisenberry appeared on behalf of Plaintiff. No. one was
present on behalf of Defendants. Accordingly, for the reasons
more fully explained below, the Court
RECOMMENDS that Plaintiff's Motion
[Doc. 93] be GRANTED IN PART AND
DENIED IN PART.
Court will begin with the allegations in the First Amended
Complaint and then turn to the procedural history of this
Allegations in the First Amended Complaint
Complaint in this matter was filed on June 7, 2016, and later
amended on September 20, 2017. [Doc. 51]. The First Amended
Complaint (“Amended Complaint”) alleges
violations of the Copyright Act and the Digital Millennium
Copyright Act (“DMCA”). In addition, the Amended
Complaint alleges unfair competition under Tennessee common
Amended Complaint states that Johnny and Brittney Gobble
(collectively, the “Gobbles”) are active leaders
in the cat breeding community. [Doc. 51 at ¶ 9]. Mrs.
Gobble specializes in artistic photography of cats and other
pets, and Mr. Gobble is a veterinarian. [Id.]. More
recently, the Gobbles have taken the lead in establishing the
Lykoi cat, which is also known as the “werewolf cat,
” as a new breed with the International Cat
Association. [Id.]. The Lykoi cat achieved full
championship status as of May 2017. [Id.].
Amended Complaint states that Mrs. Gobble is the author of
the vast majority of professional photographs of Lykoi cats.
[Id. at ¶ 10]. By virtue of Dr. Gobble's
expertise as a veterinarian with the Lykoi breed and Mrs.
Gobble being the exclusive source of the best professional
images of the Lykoi breed, along with their experience in
developing and establishing the Lykoi breed, the Gobbles are
routinely contacted by writers and bloggers requesting Mrs.
Gobble's images and commentary from Dr. Gobble for use
with an article about the Lykoi breed. [Id.]. The
Gobbles have provided commentary and Lykoi images in response
to many of the requests, all at no charge, but they have
always made it clear to the recipients that they are not
allowed to distribute the images and that the credit for the
images should be given to Mrs. Gobble. [Id.].
Amended Complaint involves fifty-five images
(“Images”) of the Lykoi cats that Mrs. Gobble
photographed. [Id. at ¶ 11]. The copyrights for
each of the Images, except Image 26, (“Registered
Images”) were registered with the United States
Copyright Office in compliance with all Copyright Office
requirements under four copyright registrations.
[Id. at ¶ 14]. Plaintiff is the owner by
assignment from Mrs. Gobble of all rights, title, and
interest with respect to the four copyright registrations.
[Id. at ¶ 19]. The four copyright registrations
include as follows:
• United States Copy Registration No. VA 1-976-214,
entitled “Lykoi 2015 Images” (hereinafter, the
“214 Registration”), which includes Images 4-6,
17, 20-21, 27, 31, 33, 35-36, 42, 52);
• United States Copy Registration No. VA 1-987-108,
entitled “Lykoi Images 2014” (hereinafter, the
“108 Registration”), which includes Images 1-3,
7-8, 10-16, 18, 22-25, 28-30, 32, 34, 37-39, 41, 43-51,
• United States Copyright Registration No. VA 2-031-115,
entitled “Group Registration Photos, Brittney Gobble
2014 Images, published March 17, 2014, to October 2, 2014, 4
photos” (hereinafter, the “115
Registration”), which includes Images 19 and 40; and
• United States Copyright Registration No. 2-031-117,
entitled “Gobble Image 2015” (hereinafter, the
“117 Registration”), which includes Image 9.
[Id. at ¶¶ 14-18].
Amended Complaint states that on November 2, 2015, Clare Penn
(“Penn”) sent an email on behalf of Defendants to
the Gobbles. [Id. at ¶ 21]. In her email, Penn
requested a selection of high resolution images of the Lykoi
breed to accompany editorial text for a feature/news item
regarding the Lykoi breed of cats (“Article”).
[Id. at ¶ 24]. Later that evening, Dr. Gobble
responded to Penn's email, in part, as follows:
Here is a link to an album of some of my hi-res images that I
give permission to be used. I do not give permission for
these images to be distributed, or to be used in an article
(or other media) that is purposefully derogatory toward our
breed (we have a good sense of humor, so jokes are fine! Just
not questioning ethics or being cruel). Whenever possible,
please credit images to “Brittney Gobble.”
[Id. at ¶ 25, Doc. 51-1 at 11]. Dr. Gobble also
included a link to a Dropbox folder containing the Images.
[Doc. 51 at ¶ 25].
Amended Complaint states that after receiving Dr.
Gobble's email, Defendants distributed the Images to at
least one of its customers, including 41 Sinclair Broadcast
Group, Inc. (“Sinclair”) television or radio
stations. [Id. at ¶¶ 37]. In addition, the Images
gave false credit to WENN or WENN.com. [Id. at
¶ 44]. On or about November 12, 2015, Mrs. Gobble
discovered that Defendants had distributed her copyrighted
Images without permission or a license, thereby infringing on
her copyrights. [Id. at ¶ 39]. The Gobbles
contacted Defendants to advise them of the copyright
infringement, and Defendants' representative stated that
someone with the licensing department would call Mrs. Gobble
to discuss the situation. [Id.]. No. one called Mrs.
Gobble regarding the copyright infringement. [Id.].
Later, the Gobbles retained counsel, and their counsel
advised Defendants of the copyright infringement, demanded
that they cease and desist, and demanded compensation for the
unauthorized distribution of the Images. [Id. at
¶ 41]. These efforts were unsuccessful. [Id. at
the Amended Complaint brings four causes of action: (1)
direct copyright infringement, 17 U.S.C. §§ 501
et seq.; (2) contributory copyright infringement, 17
U.S.C. §§ 501 et seq.; (3) falsification
of copyright management information, 17 U.S.C. §
1202(a); and (4) unfair competition under Tennessee common
law. [Id. at 135-44].
October 23, 2017, Defendants filed an Answer, a Third-Party
Complaint against Johnny and Brittney Gobble, and a
Counterclaim against Plaintiff. [Doc. 57]. On November 6,
2017, Defendants' counsel moved to withdraw from
representation in this case. [Doc. 60]. Subsequently, on
November 30, 2017, the Court allowed counsel to withdraw but
admonished Defendants that they needed to find substitute
counsel because corporations cannot appear in federal court
except through an attorney. [Doc. 74].
did not obtain substitute counsel, and on May 10, 2018,
Plaintiff requested that the Clerk enter a default against
both Defendants. [Docs. 85, 87]. The Clerk entered defaults
against both Defendants on May 31, 2018. [Docs. 90, 91]. On
July 12, 2018, Plaintiff filed the instant Motion.
Court issued an Order [Doc. 92] on October 16, 2018, ordering
Defendants to appear before the undersigned on November 9,
2018, to show cause why Plaintiff's Motion should not be
granted. As mentioned above, Attorney Quisenberry appeared on
behalf of Plaintiff. No. representative appeared on behalf of
the hearing, Plaintiff stated that this case is primarily a
copyright infringement case, wherein Defendants have stopped
participating. With respect to the copyright infringement
claims (Counts I and II), Plaintiff elected to pursue its
actual damages as opposed to its statutory damages. Plaintiff
stated that it retained an expert, Professor Jeffrey Sedlik
(“Sedlik”), who opined that the actual damages
for the copyright infringement are approximately 1.9 million
dollars. Further, Plaintiff submitted that Sedlik opined that
the actual damages for the copyright infringement should be
multiplied three to five times based on the scarcity of the
Registered Images. Plaintiff explained that the Registered
Images that are the subject of this lawsuit are of a new
breed of cat.
addition, during the hearing, with respect to its claim under
the DMCA, Plaintiff requested damages for Defendants'
distribution of the Images and for Defendants'
customers' distribution of the Images, which falsely
credited WENN or WENN.com. Further, Plaintiff withdrew its request
for an injunction as it related to the removal of the Images
from Defendants' customers' websites, but maintained
that an injunction against Defendants was appropriate because
of Defendants' deliberate behavior. While Plaintiff
acknowledged that it had no evidence that Defendants were
continuing to violate its rights, Plaintiff argued that there
is no harm in issuing an injunction. At the conclusion of the
hearing, the Court granted Plaintiff leave to file a
supplemental brief to address the questions that the Court
raised at the hearing.
the Court held a telephone conference on February 11, 2019,
to seek clarification on Plaintiff's request for damages
under the DMCA for Defendants' distribution of the
Images. As a result of this telephone conference, Plaintiff
filed a Notice of Withdrawal of Claim for CMI Damages from
Motion for Default Judgment [Doc. 101]. Specifically,
Plaintiff withdrew its claim for damages with respect to
Count III (falsification of copyright management information)
as set forth in paragraph three in its Motion for Default
Judgment [Doc. 93].
POSITIONS OF THE PARTIES
instant Motion, Plaintiff requests that the Court enter a
default judgment against Defendants with respect to Counts
I-IV in the Amended Complaint. With respect to Counts I and
II, Plaintiff states that it is entitled to a default
judgment for direct and contributory copyright infringement.
Plaintiff submits that a party may establish a copyright
infringement claim by demonstrating two elements: (1)
ownership of a valid copyright, and (2) copying of
constituent elements of the work that are original. Plaintiff
argues that it owns four copyrights with respect to Images
1-55, except Image 26, and that the effective registration
date is October 30, 2015. Plaintiff asserts that all of the
copyright infringement alleged in this action occurred after
October 30, 2015. In addition, Plaintiff contends that
Defendants copied the Registered Images and distributed them
to their customers and infringed Plaintiff's copyrights