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Brittney Gobble Photography, LLC v. WENN Limited

United States District Court, E.D. Tennessee, Knoxville

February 19, 2019

BRITTNEY GOBBLE PHOTOGRAPHY, LLC, Plaintiff,
v.
WENN LIMITED, and USA ENTERTAINMENT NEWS, INC., d/b/a/ “WENN” and “WORLD ENTERTAINMENT NEWS NETWORK, ” Defendants.

          REPORT AND RECOMMENDATION

          DEBRA C. POPLIN, UNITED STATES MAGISTRATE JUDGE

         This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and the referral Order [Doc. 95] of the District Judge.

         Now 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.

         I. BACKGROUND

         The Court will begin with the allegations in the First Amended Complaint and then turn to the procedural history of this case.

         A. Allegations in the First Amended Complaint

         The 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 law.

         The 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.].

         The 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.].

         The 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, 53-55;
• 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].

         The 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].

         The 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].[1] 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 ¶ 42].

         Specifically, 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].

         B. Procedural History

         On 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].

         Defendants 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.

         The 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 Defendants.

         During 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.

         In 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.[2] 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.

         Finally, 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].

         II. POSITIONS OF THE PARTIES

         In the 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 by ...


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