Hirsch v. Forum Daily Inc.
1:18-cv-06531
E.D.N.YFeb 9, 2021Background:
- Plaintiff Steven Hirsch, a professional photographer, took two photographs at the Yoselyn Ortega trial and licensed them to the New York Post.
- Forum Daily published an article on its website republishing both photographs without Hirsch’s license or consent; Hirsch’s copyright registration for the photographs is effective March 29, 2018.
- Hirsch sued Forum Daily for copyright infringement (17 U.S.C. § 501) and for intentional removal of copyright management information (DMCA § 1202(b)); Forum Daily was served but did not appear and default was entered.
- The court treated Forum Daily’s default as admission of well-pleaded facts, found liability for copyright infringement as to both photographs, and found a DMCA violation only as to the Ortega photograph (because a gutter credit to Hirsch appeared in the Post but was omitted on Forum Daily).
- The magistrate judge recommended partial default judgment awarding statutory damages: $750 per photograph ($1,500) for copyright violations; $5,000 for the DMCA violation (Ortega photo); attorney’s fees $1,750; costs $440; total $8,690 plus post-judgment interest.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entry of default judgment | Forum Daily was served and failed to respond; default judgment appropriate | No response/defense | Default judgment granted in part; entry appropriate (willful default, prejudice, no meritorious defense) |
| Copyright infringement liability | Hirsch owns valid copyrights and Forum Daily copied and publicly displayed the photos without license | No response | Liability found for infringement of both photographs (certificate of registration prima facie evidence; originality established) |
| DMCA (CMI removal) liability | Forum Daily removed photographer credit (CMI) when republishing, intentionally and knowingly | No response | Liability found only for Ortega photograph (gutter credit present in NY Post but removed by Forum Daily); no DMCA liability for Krims photo (no evidence CMI existed) |
| Statutory damages (Copyright) | Seeks $30,000 per photo ($60,000) as deterrent | No response | Court awarded modest statutory damages: $750 per photo ($1,500 total) given scant evidence of willfulness or actual losses |
| Statutory damages (DMCA) | Seeks $10,000 for CMI removal | No response | Court awarded $5,000 for the single DMCA violation (Ortega photo) |
| Attorney's fees & costs | Seeks $2,550 (7 hrs at $425/hr) + $440 costs | No response | Fees reduced: awarded $1,750 (5 hrs at $350/hr); costs $440 awarded; post-judgment interest allowed |
Key Cases Cited
- Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) (copyright infringement requires ownership and copying; originality requirement explained)
- Enron Oil Corp. v. Diakuhara, 10 F.3d 90 (2d Cir. 1993) (factors guiding courts on default judgment relief)
- Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155 (2d Cir. 1992) (default admits well-pleaded factual allegations but not legal conclusions)
- Finkel v. Romanowicz, 577 F.3d 79 (2d Cir. 2009) (court must accept plaintiff’s factual allegations as true on default)
- Bryant v. Media Right Prods., Inc., 603 F.3d 135 (2d Cir. 2010) (factors for assessing statutory damages and awarding attorney’s fees in copyright cases)
- Boisson v. Banian Ltd., 273 F.3d 262 (2d Cir. 2001) (definition of originality in copyright law)
- Mango v. BuzzFeed, Inc., 970 F.3d 167 (2d Cir. 2020) (DMCA §1202 analysis regarding CMI and related violations)
- Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905 (2d Cir. 1980) (prima facie effect of a Certificate of Registration)