8 UNITED STATES DISTRICT COURT 9
12 MICHAEL GRECCO PRODUCTIONS, Case No. 19-CV-06399-LHK 14 Plaintiff, ORDER GRANTING MOTION FOR ATTORNEY’S FEES 15 v. Re: Dkt. No. 37
17 Defendant.
18 Plaintiff Michael Grecco Productions, Inc. (“Plaintiff”) sued Defendant Enthusiast 19 Gaming, Inc. (“Defendant”) for copyright infringement. On December 8, 2020, the Court granted 20 in part and denied in part Plaintiff’s motion for default judgment. ECF No. 35. Before the Court is 21 Plaintiff’s motion for attorney’s fees, ECF No. 37. Having considered the parties’ submissions, the 22 relevant law, and the record in this case, the Court hereby GRANTS Plaintiff’s motion for 23 attorney’s fees.1 24 25 1 Plaintiff’s motion contains a notice of motion paginated separately from the points and 26 authorities in support of the motion. ECF No. 37. Civil Local Rule 7-2(b) provides that the notice of motion and points and authorities must be contained in one document with the same pagination. 27 1 Case No. 19-CV-06399-LHK 2 A. Factual Background 3 Plaintiff is a photography agency with its principal place of business in Santa Monica, 4 California. ECF No. 1 (“Compl.”) ¶ 7. Plaintiff owns the copyrights to photographs taken by 5 Michael Grecco and licenses those photographs to third parties on his behalf. Id. ¶ 7. Plaintiff’s 6 business is to provide celebrity photographs to major media publications. Id. ¶ 13. 7 With respect to the instant case, Plaintiff is the owner and exclusive copyright holder of a 8 promotional still photograph (the “Photograph”) of actress Nana Visitor as Kira Nerys, a fictional 9 character from the television show “Star Trek: Deep Space Nine.” Id. ¶¶ 15–16. Plaintiff 10 registered the Photograph in compliance with the Copyright Act and obtained a Certificate with 11 Registration No. VA 1-736-729 (eff. July 7, 2010). Id. ¶ 16. 12 Defendant Enthusiast Gaming Inc. (“Defendant”) is a Canadian-owned corporation doing 13 business as Destructoid, headquartered in San Francisco, California. Id. ¶ 5. According to Plaintiff, 14 Defendant uses celebrity images to drive internet traffic to its website to increase advertising 15 revenue, and a large portion of Defendant’s revenue increases with the number of visitors who 16 click on its website and subsequently view featured third-party advertisements. Id. ¶¶ 14, 19–20. 17 Plaintiff alleges that Defendant used Plaintiff’s Photograph on its website without license 18 by “prominently featuring” the Photograph to promote articles and content to increase viewership. 19 Id. ¶ 21. Specifically, Plaintiff alleges that Defendant published the Photograph on October 15, 20 2017 without any authorization or permission from Plaintiff. Id. ¶¶ 22–23. Plaintiff alleges that the 21 Photograph was published on Defendant’s website to accompany an article written by CJ 22 Andriessen, Defendant’s features editor. Id. Plaintiff states that Defendant continued to display the 23 Photograph through the filing of this complaint and only took down the Photograph earlier this 24 year. Id. ¶ 22; ECF No. 23 at 10. Plaintiff further alleges that Defendant did not pay a license fee, 25 inquire about the availability of a license, or confirm whether the Photograph had been authorized 26 for use on Defendant’s website before, during, or after its publication of the Photograph. Compl. ¶ 27 2 Case No. 19-CV-06399-LHK 1 28. 2 B. Procedural History 3 On October 7, 2019, Plaintiff filed a complaint against Defendant that alleged two claims 4 for copyright infringement and vicarious and/or contributory copyright infringement. Compl. 5 ¶¶ 29–49. Plaintiff sought both injunctive relief and statutory damages. Id. ¶ 2. 6 On January 2, 2020, Plaintiff filed a case management statement noting that “Defendant 7 was served with the summons and complaint, by substitute service, on November 11, 2019,” but 8 that Defendant had not “appeared, answered, or otherwise responded to the complaint, and 9 plaintiff’s counsel ha[d] not been contacted by any counsel purporting to represent [D]efendant.” 10 ECF No. 10. On January 3, 2020, the Court ordered Plaintiff to file proof of service. ECF No. 12. 11 On January 3, 2020, Plaintiff filed a proof of service indicating that Plaintiff served Bill Doe, an 12 “[e]mployee at Earth Class mail,” in person on October 10, 2019 and by mail on October 14, 13 2019. ECF No. 13. 14 That same day, the Court ordered Plaintiff to file a statement that explained (1) why 15 service on Bill Doe was proper, and (2) why Plaintiff previously stated that Defendant was served 16 on November 11, 2019 when the proof of service stated that Defendant was served on October 10, 17 2019 and October 14, 2019. ECF No. 14. On January 5, 2020, Plaintiff filed a statement in 18 response to the Court’s order regarding service. ECF No. 15. Plaintiff addressed service of process 19 under California Code of Civil Procedure Section 415.20(a) and explained that service of the 20 summons and complaint did in fact occur on October 10, 2019 and October 14, 2019, as indicated 21 by the filed proof of service. Id. at 1–2, 3–4. 22 On February 8, 2020, Plaintiff moved for entry of default against Defendant. ECF No. 18. 23 On February 11, 2020, the Clerk entered default against Defendant. ECF No. 19. On April 7, 24 2020, Plaintiff filed a motion for default judgment. ECF No. 23. 25 26 27 3 Case No. 19-CV-06399-LHK 1 On July 22, 2020, the Court denied Plaintiff’s motion for default judgment without 2 prejudice. ECF No. 30. The Court concluded that Plaintiff had not established that Defendant was 3 properly served for three reasons. Id. at 8–11. First, Plaintiff had not satisfied the requirements for 4 substitute service in California Code of Civil Procedure Section 415.20(a) because Plaintiff had 5 not stated that prepaid postage was included in mailing the summons and complaint to Defendant. 6 Id. at 8. Second, Plaintiff had not provided an affidavit of the person who served Defendant as 7 required by California Code of Civil Procedure Section 417.10(a). Id. at 9. Finally, Plaintiff had 8 not established that the summons included a notice as required by California Code of Civil 9 Procedure Section 412.30. Id. at 9–10. The Court thus denied Plaintiff’s motion for default 10 judgment without prejudice. Id. at 11. The Court ordered Plaintiff to either (1) file a new motion 11 for default judgment and declarations and affidavits demonstrating compliance with the California 12 Code of Civil Procedure requirements or (2) propose a schedule for promptly serving Defendant. 13 Id. 14 On August 18, 2020, Plaintiff filed a new motion for default judgment. ECF No. 31. On 15 December 8, 2020, this Court granted in part and denied in part Plaintiff’s renewed motion for 16 default judgment. ECF No. 35. The Court found that the Court had jurisdiction and that Plaintiff 17 had established that Defendant was properly served. Id. at 5–10. The Court further concluded that 18 default judgment was proper as to Plaintiff’s claim for copyright infringement. Id. at 10–15. The 19 Court concluded that that default judgment was not proper as to Plaintiff’s claim for vicarious 20 and/or contributory copyright infringement because Plaintiff had not briefed that claim in 21 Plaintiff’s motion for default judgment. Id. at 11. 22 As to damages, the Court denied Plaintiff injunctive relief because the Court concluded 23 that Plaintiff had not established that there was a continuing threat of infringing activity. Id. at 15– 24 16. The Court then awarded Plaintiff $62,500 in statutory damages because the Court found 25 willful infringement of Plaintiff’s copyright. Id. at 16–18. Finally, as relevant here, the Court 26 27 4 Case No. 19-CV-06399-LHK 1 granted Plaintiff’s request for costs but denied Plaintiff’s request for attorney’s fees because 2 counsel had not provided billing records showing how many hours were spent on each task. Id. at 3 19.
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8 UNITED STATES DISTRICT COURT 9
12 MICHAEL GRECCO PRODUCTIONS, Case No. 19-CV-06399-LHK 14 Plaintiff, ORDER GRANTING MOTION FOR ATTORNEY’S FEES 15 v. Re: Dkt. No. 37
17 Defendant.
18 Plaintiff Michael Grecco Productions, Inc. (“Plaintiff”) sued Defendant Enthusiast 19 Gaming, Inc. (“Defendant”) for copyright infringement. On December 8, 2020, the Court granted 20 in part and denied in part Plaintiff’s motion for default judgment. ECF No. 35. Before the Court is 21 Plaintiff’s motion for attorney’s fees, ECF No. 37. Having considered the parties’ submissions, the 22 relevant law, and the record in this case, the Court hereby GRANTS Plaintiff’s motion for 23 attorney’s fees.1 24 25 1 Plaintiff’s motion contains a notice of motion paginated separately from the points and 26 authorities in support of the motion. ECF No. 37. Civil Local Rule 7-2(b) provides that the notice of motion and points and authorities must be contained in one document with the same pagination. 27 1 Case No. 19-CV-06399-LHK 2 A. Factual Background 3 Plaintiff is a photography agency with its principal place of business in Santa Monica, 4 California. ECF No. 1 (“Compl.”) ¶ 7. Plaintiff owns the copyrights to photographs taken by 5 Michael Grecco and licenses those photographs to third parties on his behalf. Id. ¶ 7. Plaintiff’s 6 business is to provide celebrity photographs to major media publications. Id. ¶ 13. 7 With respect to the instant case, Plaintiff is the owner and exclusive copyright holder of a 8 promotional still photograph (the “Photograph”) of actress Nana Visitor as Kira Nerys, a fictional 9 character from the television show “Star Trek: Deep Space Nine.” Id. ¶¶ 15–16. Plaintiff 10 registered the Photograph in compliance with the Copyright Act and obtained a Certificate with 11 Registration No. VA 1-736-729 (eff. July 7, 2010). Id. ¶ 16. 12 Defendant Enthusiast Gaming Inc. (“Defendant”) is a Canadian-owned corporation doing 13 business as Destructoid, headquartered in San Francisco, California. Id. ¶ 5. According to Plaintiff, 14 Defendant uses celebrity images to drive internet traffic to its website to increase advertising 15 revenue, and a large portion of Defendant’s revenue increases with the number of visitors who 16 click on its website and subsequently view featured third-party advertisements. Id. ¶¶ 14, 19–20. 17 Plaintiff alleges that Defendant used Plaintiff’s Photograph on its website without license 18 by “prominently featuring” the Photograph to promote articles and content to increase viewership. 19 Id. ¶ 21. Specifically, Plaintiff alleges that Defendant published the Photograph on October 15, 20 2017 without any authorization or permission from Plaintiff. Id. ¶¶ 22–23. Plaintiff alleges that the 21 Photograph was published on Defendant’s website to accompany an article written by CJ 22 Andriessen, Defendant’s features editor. Id. Plaintiff states that Defendant continued to display the 23 Photograph through the filing of this complaint and only took down the Photograph earlier this 24 year. Id. ¶ 22; ECF No. 23 at 10. Plaintiff further alleges that Defendant did not pay a license fee, 25 inquire about the availability of a license, or confirm whether the Photograph had been authorized 26 for use on Defendant’s website before, during, or after its publication of the Photograph. Compl. ¶ 27 2 Case No. 19-CV-06399-LHK 1 28. 2 B. Procedural History 3 On October 7, 2019, Plaintiff filed a complaint against Defendant that alleged two claims 4 for copyright infringement and vicarious and/or contributory copyright infringement. Compl. 5 ¶¶ 29–49. Plaintiff sought both injunctive relief and statutory damages. Id. ¶ 2. 6 On January 2, 2020, Plaintiff filed a case management statement noting that “Defendant 7 was served with the summons and complaint, by substitute service, on November 11, 2019,” but 8 that Defendant had not “appeared, answered, or otherwise responded to the complaint, and 9 plaintiff’s counsel ha[d] not been contacted by any counsel purporting to represent [D]efendant.” 10 ECF No. 10. On January 3, 2020, the Court ordered Plaintiff to file proof of service. ECF No. 12. 11 On January 3, 2020, Plaintiff filed a proof of service indicating that Plaintiff served Bill Doe, an 12 “[e]mployee at Earth Class mail,” in person on October 10, 2019 and by mail on October 14, 13 2019. ECF No. 13. 14 That same day, the Court ordered Plaintiff to file a statement that explained (1) why 15 service on Bill Doe was proper, and (2) why Plaintiff previously stated that Defendant was served 16 on November 11, 2019 when the proof of service stated that Defendant was served on October 10, 17 2019 and October 14, 2019. ECF No. 14. On January 5, 2020, Plaintiff filed a statement in 18 response to the Court’s order regarding service. ECF No. 15. Plaintiff addressed service of process 19 under California Code of Civil Procedure Section 415.20(a) and explained that service of the 20 summons and complaint did in fact occur on October 10, 2019 and October 14, 2019, as indicated 21 by the filed proof of service. Id. at 1–2, 3–4. 22 On February 8, 2020, Plaintiff moved for entry of default against Defendant. ECF No. 18. 23 On February 11, 2020, the Clerk entered default against Defendant. ECF No. 19. On April 7, 24 2020, Plaintiff filed a motion for default judgment. ECF No. 23. 25 26 27 3 Case No. 19-CV-06399-LHK 1 On July 22, 2020, the Court denied Plaintiff’s motion for default judgment without 2 prejudice. ECF No. 30. The Court concluded that Plaintiff had not established that Defendant was 3 properly served for three reasons. Id. at 8–11. First, Plaintiff had not satisfied the requirements for 4 substitute service in California Code of Civil Procedure Section 415.20(a) because Plaintiff had 5 not stated that prepaid postage was included in mailing the summons and complaint to Defendant. 6 Id. at 8. Second, Plaintiff had not provided an affidavit of the person who served Defendant as 7 required by California Code of Civil Procedure Section 417.10(a). Id. at 9. Finally, Plaintiff had 8 not established that the summons included a notice as required by California Code of Civil 9 Procedure Section 412.30. Id. at 9–10. The Court thus denied Plaintiff’s motion for default 10 judgment without prejudice. Id. at 11. The Court ordered Plaintiff to either (1) file a new motion 11 for default judgment and declarations and affidavits demonstrating compliance with the California 12 Code of Civil Procedure requirements or (2) propose a schedule for promptly serving Defendant. 13 Id. 14 On August 18, 2020, Plaintiff filed a new motion for default judgment. ECF No. 31. On 15 December 8, 2020, this Court granted in part and denied in part Plaintiff’s renewed motion for 16 default judgment. ECF No. 35. The Court found that the Court had jurisdiction and that Plaintiff 17 had established that Defendant was properly served. Id. at 5–10. The Court further concluded that 18 default judgment was proper as to Plaintiff’s claim for copyright infringement. Id. at 10–15. The 19 Court concluded that that default judgment was not proper as to Plaintiff’s claim for vicarious 20 and/or contributory copyright infringement because Plaintiff had not briefed that claim in 21 Plaintiff’s motion for default judgment. Id. at 11. 22 As to damages, the Court denied Plaintiff injunctive relief because the Court concluded 23 that Plaintiff had not established that there was a continuing threat of infringing activity. Id. at 15– 24 16. The Court then awarded Plaintiff $62,500 in statutory damages because the Court found 25 willful infringement of Plaintiff’s copyright. Id. at 16–18. Finally, as relevant here, the Court 26 27 4 Case No. 19-CV-06399-LHK 1 granted Plaintiff’s request for costs but denied Plaintiff’s request for attorney’s fees because 2 counsel had not provided billing records showing how many hours were spent on each task. Id. at 3 19. The Court ordered that, if Plaintiff wanted to file a renewed motion for attorney’s fees, 4 Plaintiff must file a new motion providing the information requested by the Court within 30 days 5 of the Court’s order. Id. at 19. On December 8, 2020, the Court entered judgment on Plaintiff’s 6 claim for copyright infringement in favor of Plaintiff and against Defendant in the amount of 7 $62,500 in actual damages and $1,032.23 in costs. ECF No. 36. 8 On January 7, 2021, Plaintiff filed the instant motion for attorney’s fees. ECF No. 37 9 (“Mot.”). Plaintiff submitted a declaration by Peter Perkowski, counsel for Plaintiff, in support of 10 Plaintiff’s motion. See Perkowski Decl. Defendant has neither appeared in the instant case nor 11 filed a response to the instant motion. On January 25, 2021, Plaintiff filed a reply stating that no 12 opposition had been filed. ECF No. 38. 13 II. LEGAL STANDARD 14 The Copyright Act permits a court to award full costs and reasonable attorney's fees to a 15 prevailing party. 17 U.S.C. § 505. In determining reasonable attorney's fees in trademark and 16 copyright infringement cases, courts within the Ninth Circuit have employed the lodestar method. 17 See, e.g., Intel Corp. v. Terabyte Intern., Inc., 6 F.3d 614, 622 (9th Cir. 1993) (trademark); 18 Jackson v. Sturkie, 255 F. Supp. 2d 1096, 1104 (N.D. Cal. 2003) (copyright); Autodesk, Inc. v. 19 Flores, 2011 WL 1884694, at *1–*2 (N.D. Cal. May 18, 2011) (copyright). “When it sets a fee, 20 the district court must first determine the presumptive lodestar figure by multiplying the number 21 of hours reasonably expended on the litigation by the reasonable hourly rate.” Intel Corp., 6 F.3d 22 at 622. “Although in most cases, the lodestar figure is presumptively a reasonable fee award, the 23 district court may, if circumstances warrant, adjust the lodestar to account for other factors which 24 are not subsumed within it.” Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 25 2001). 26 27 5 Case No. 19-CV-06399-LHK 2 The Copyright Act permits the Court to award reasonable attorney’s fees to a prevailing 3 party. 17 U.S.C. § 505. A prevailing party is “[a] party in whose favor a judgment is rendered.” 4 Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Res., 532 U.S. 5 598, 603 (2001) (quotation omitted). In the instant case, Plaintiff prevailed on Plaintiff’s claim for 6 copyright infringement because the Court entered judgment in favor of Plaintiff on this claim. See 7 ECF No. 36. Accordingly, the Court may award reasonable attorney’s fees to Plaintiff. 8 The Court uses the lodestar method to calculate reasonable attorney’s fees in copyright 9 infringement cases, such as the instant case. Intel Corp., 6 F.3d at 622. To determine the lodestar 10 figure, the Court multiplies the number of hours reasonably expended on the litigation by the 11 reasonable hourly rate. Id. Accordingly, the Court addresses in turn: (1) the reasonable hourly rate 12 and (2) the number of hours reasonably expended on the litigation. 13 As to the reasonable hourly rate, the party seeking fees bears the burden of demonstrating 14 that the rates requested are “in line with those prevailing in the community for similar services.” 15 Intel Corp., 6 F.3d at 622 (quoting Jordan v. Multnomah County, 815 F.2d 1258, 1263 (9th Cir. 16 1987)). Generally, “the relevant community is the forum in which the district court sits.” Camacho 17 v. Bridgeport Financial, Inc., 523 F.3d 973, 979 (9th Cir. 2008). 18 In the instant case, Plaintiff seeks to recover fees incurred by attorney Peter Perkowski at a 19 rate of $500 per hour. Plaintiff has submitted a declaration by Perkowski describing Perkowski’s 20 experience and qualifications and the services Perkowski provided in the instant case. See 21 Perkowski Decl. Based on this information, the rate requested is reasonable. Perkowski has been a 22 practicing attorney for 22 years, and a significant portion of Perkowski’s practice focuses on 23 intellectual property matters, including copyright litigation. Perkowski Decl. ¶ 3. Before 24 Perkowski started his own practice in 2015, Perkowski was a partner for 7 years at Winston & 25 Strawn LLP, where Perkowski’s billing rate was over $900 per hour, almost double the rate 26 requested for Perkowski’s work on the instant case. Id. ¶¶ 3–4. Furthermore, the rate requested is 27 6 Case No. 19-CV-06399-LHK 1 commensurate with the rates of attorneys with similar experience and qualifications to those of 2 Perkowski. Id. ¶ 5. Accordingly, the Court concludes that the rate requested is reasonable. 3 As to the number of hours reasonably expended, Perkowski’s declaration states that 4 Perkowski expended 35.35 hours working on the instant case. Perkowski Decl. Exh. A. 5 Furthermore, Perkowski’s declaration includes a detailed breakdown of the hours billed and the 6 services provided. The services provided consist primarily of: (1) factual investigation and 7 preparation of the Complaint, which took 4 hours; (2) preparation of the request to enter default 8 and the motion for default judgment, which took 20.25 hours; and (3) preparation of the motion 9 for attorney’s fees, which took 4.6 hours. Id. 10 The Court agrees that the hours requested appear reasonable and necessary. Indeed, most 11 of the hours requested involved drafting the complaint and a motion for default judgment, both of 12 which were necessary to resolve the instant case. Moreover, the time counsel spent drafting the 13 complaint and the motion for default judgment was reasonable. Although counsel prepared two 14 motions for default judgment, the second motion built on the first and therefore did not involve 15 duplication of work. Furthermore, the total of 20.25 hours that was required to prepare a motion 16 for default judgment is reasonable. Thus, the Court concludes that the hours requested appear 17 reasonable. 18 Multiplying the reasonable hourly fee ($500 per hour) by the number of hours reasonably 19 expended (35.35), the lodestar figure is $17,675. Because the hourly fee and the number of hours 20 expended are reasonable, the Court concludes that the lodestar figure is reasonable. The Court thus 21 GRANTS Plaintiff’s motion for attorney’s fees. 22 IV. CONCLUSION 23 For the foregoing reasons, the Court GRANTS Plaintiff’s motion for attorney’s fees in the 24 amount of $17,675. 25 IT IS SO ORDERED. 26 27 7 Case No. 19-CV-06399-LHK 1 Dated: May 18, 2021 2 ______________________________________ United States District Judge 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 8 Case No. 19-CV-06399-LHK