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Sands v. Fan Fest News, LLC

United States District Court, M.D. Tennessee, Nashville Division

December 10, 2019

STEVE SANDS, Plaintiff,
v.
FAN FEST NEWS, LLC., Defendant.

          MEMORANDUM OPINION

          ELI RICHARDSON UNITED STATES DISTRICT JUDGE

         Pending before the Court is Plaintiff Steve Sands's unopposed Motion for Default Judgment (Doc. No. 22, “Motion”) against Defendant, Fan Fest News, LLC (“Fan Fest”).[1] On August 5, 2019, pursuant to the Court's July 18, 2019 Order, Plaintiff filed a Supplemental Memorandum of Law (“Supplemental Brief”) providing additional evidence and legal arguments in further support of its Motion. (Doc. No. 26). Defendant has not appeared or otherwise sought to defend itself in this action. For the reasons discussed below, Plaintiff's Motion will be GRANTED IN PART.

         BACKGROUND

         A. Factual Background[2]

         Plaintiff is a professional photographer engaged in the business of licensing his photographs to online and print media for a fee. (Doc. No. 1 ¶ 5). Plaintiff's usual place of business is New York. (Id.).

         Defendant is a domestic limited liability company organized and existing under the laws of Tennessee with its place of business in Spring Hill, Tennessee. (Id. ¶ 6). At all relevant times, Defendant owned and operated a website at the URL: https://fanfest.com (“Website”). (Id.)

         At some point, [3] Plaintiff photographed actor Jonathan Bernthal on the set of Netflix TV series The Punisher. (Id. ¶ 7).[4] On June 20, 2017, the photographs were registered with the United States Copyright Office under registration number VA 2-062-421. (Doc. No. 1-3).

         On or about April 15, 2017, Defendant published an article on its Website titled ‘The Punisher': Jon Bernthal Dons Icon Costume in New Photos (Doc. No. 1-4, “Article”). (Doc. No. 1 ¶ 15). The Article featured four of Plaintiff's registered photographs (“Photographs”). According to Plaintiff, Defendant published the Photographs without obtaining Plaintiff's consent or authorization. Plaintiff alleges that Defendant is liable for willful copyright infringement of each of the four Photographs as a separate work.

         B. Procedural Background

         Plaintiff filed his Complaint against Defendant on December 7, 2018. (Doc. No. 1). Defendant was served on January 2, 2019, via personal service upon Defendant's registered agent. (Doc. Nos. 10, 19). Defendant did not respond, either within the time allowed by the Rule 12 of the Federal Rules of Civil Procedure or at any point thereafter. On May 22, 2019, the Clerk of Court issued an Entry of Default Judgment pursuant to Federal Rule of Civil Procedure 55(a). (Doc. No. 20). On July 2, 2019, Plaintiff filed the instant Motion pursuant to Federal Rule of Civil Procedure 55(b). (Doc. 22). To date, Defendant has not responded or otherwise sought to defend itself in this action.

         Plaintiff currently seeks an award of statutory damages in the amount of $120, 000 ($30, 000 per Photograph) in civil penalties for willful copyright infringement pursuant to 17 U.S.C. § 504(c) and $1, 500 in attorney's fees and $529.99 in costs pursuant to 17 U.S.C. §505. (Doc. No. 22-1 ¶¶ 10-12).

         LEGAL STANDARD

         In order to obtain a default judgment under Federal Rule of Civil Procedure 55, the plaintiff must have first secured an entry of default from the Clerk of Court, which requires a showing, “by affidavit or otherwise, ” that the defendant “has failed to plead or otherwise defend” itself in the action. Fed.R.Civ.P. 55(a). Upon entry of default, if the plaintiff's claim is not for a sum certain, he or she “must apply to the court for a default judgment.” Fed.R.Civ.P. 55(b)(1)-(2).

         Following an entry of default, the complaint's well-pleaded allegations pertaining to liability are taken as true. In re Family Resorts of Am., Inc., No. 19-4127, 1992 WL 174539, at *4 (6th Cir. July 24, 1992). However, the default is not considered an admission of damages. Vesligaj v. Peterson,331 Fed.Appx. 351, 355 (6th Cir. 2009) (“Where damages are unliquidated a default admits only [the defaulting party's] liability and the amount of damages must be proved.”). In order to determine damages, the court can, but is not required to, hold an evidentiary hearing. “[A] hearing is not necessarily required if the moving party submits uncontested, sworn affidavits sufficient to establish the amount of damages.” Broad. Music, Inc. v. Marler, No. 9-cv-193, 2009 WL 3785878, at *5 (E.D. Tenn. Nov. 12, 2009); see also Fed. R. Civ. P. 55(b)(2) (A district court “may conduct hearings ... when, to enter or effectuate judgment, it needs to: (A) conduct an accounting; (B) determine the amount of damages; (C) ...


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