United States District Court, W.D. Washington, Seattle
ORDER GRANTING DEFAULT JUDGMENT AND PERMANENT
INJUNCTION AGAINST DEFENDANT JUSTIN MARKEL
Honorable Richard A. Jones United States District Judge
matter comes before the Court on the Plaintiff's motion
for default judgment and permanent injunction against
Defendant. Considering all pleadings and filings of record,
the Court concludes as follows:
Plaintiff filed this action against various Doe Defendants in
the United States District Court for the Western District of
Washington for copyright infringement, 17 U.S.C. §§
101, et seq. resulting from the illegal copying and
distribution of Plaintiff's motion picture entitled
Criminal, registered with the United States
Copyright Office, Reg. No. PA 1-984-029.
Defendant is the responsible party as set forth in the
complaint and, as such, is a proper named defendant in this
Service of the amended complaint was effected on the
defaulted Defendant and proof of service was field with the
Court. (Dkt. 25) Defendant failed to answer or otherwise
defend. Plaintiff filed a motion for entry of default, which
was entered. (Dkt. 39)
Court has jurisdiction over the parties and venue is proper.
prevail on a copyright infringement claim, a plaintiff must
establish (1) ownership of a valid copyright and (2) copying
of constituent elements of the work that are original.
Feist Publications, Inc. v. Rural Tel. Serv. Co.,
499 U.S. 340 (1991). Once a default is entered against a
party, all allegations other than damages are presumed to be
true. Geddes v. United Financial Group, 559 F.2d
557, 560 (9th Cir. 1977). Plaintiff's allegation that
Defendant's infringement was willful is also taken as
true. See Derek Andrew, Inc. v. Poof Apparel Corp.,
528 F.3d 696, 702 (9th Cir. 2008) (allegation of willfulness
deemed admitted on default); Salyer v. Hotels Com GP,
LLC, 2015 U.S. Dist. LEXIS 82171 (W.D. Wash. 2015).
Plaintiff's complaint, the allegations of which must be
taken as true, establishes these elements.
Plaintiff has valid and enforceable rights in the original
copyrighted work Criminal, registered with the
United States Copyright Office, Reg. No. PA 1-984-029.
Defendant has directly, indirectly and/or contributorily
infringed Plaintiff's rights by copying and distributing
or permitting, facilitating and materially contributing to
the infringement of Plaintiff's exclusive rights under
The Copyright Act by others as alleged in the amended
complaint, thereby causing Plaintiff economic harm. This
infringement has been willful.
U.S.C. § 502(a) authorizes an injunction to
“prevent or restrain infringement of a
copyright.” Defendant by default has been found liable
for infringement in the instant action and likely possess the
means to continue infringement in the future, meeting the
court's requirements for issuing such an injunction.
U.S.C. § 503(b) authorizes the “destruction or
other reasonable disposition” of all copies made or
used in violation of the copyright owner's exclusive
copyright infringement cases a plaintiff may elect either
actual or statutory damages. 17 U.S.C. § 504(a).
“[S]tatutory damages are recoverable without regard to
the existence or provability of actual damages.”
New Form, Inc. v. Tekila Films, Inc., 357 Fed.Appx.
10, 11 (9th Cir. 2009), cert. den. 130 S.Ct. 2405
(2010); Columbia Pictures Television, Inc. v. Krypton
Broad of Birmingham, Inc., 259 F.3d 1186, 1194 (9th Cir.
2001). The Copyright Act provides for statutory damages in a
sum of not less than $750 or more than $30, 000, as the court
considered just, but provides for increase of the award to
$150, 000 in cases of willful infringement. The admitted
facts of this case dictate that Defendant infringed
Plaintiff's registered copyright, warranting enhanced
statutory damages, including for willful infringement. While
the Court has discretion to award the minimum $750 amount for
statutory damages, the amount should be substantial enough to
compensate the plaintiff, punish the defendant and deter
U.S.C. § 505 provides for an award of reasonable
attorney's fees. Frank Music Corp. v.
Metro-Goldwyn-Mayer Inc., 886 F.2d 1545, 1556 (9th Cir.
1989) (citing McCulloch v. Albert E. Price, Inc.,
823 F.2d 316, 323 (9th Cir.1987)). District courts should
consider the following nonexclusive actors in determining an
award of attorney's fees: (1) the degree of success
obtained; (2) frivolousness; (3) motivation; (4) the
objective unreasonableness of the losing party's factual
and legal arguments; and (5) the need, in particular
circumstances, to advance considerations of compensation and
deterrence. Love v. Associated Newspapers, Ltd., 611
F.3d 601, 614 (9th Cir. 2010); see also Jackson v.
Axton, 25 F.3d 884, 890 (9th Cir. 1994); Fogerty v.
Fantasy, Inc., 510 U.S. 517, 534 n. 19, 114 S.Ct. 1023,
1033 n. 19 (1994).
Plaintiff's success is complete. The claims as deemed
fully admitted are not frivolous. Plaintiff's motivation
is to enforce its rights as it is active in the industry. The
position of Defendant is deemed objectively unreasonable
given their failure to advance any factual or legal arguments
against Plaintiff's claims. See Kirtsaeng v. John
Wiley & Sons, Inc.,136 S.Ct. 1979, 1988-1989
(2016). Additionally, ...