McDermott v. Kalita Mukul Creative Inc.
757 F.Supp.3d 301
E.D.N.Y2024Background
- Plaintiff Matthew McDermott, a freelance photojournalist, sued Kalita Mukul Creative Inc. (KMC) for copyright infringement after KMC published a photo he took of NYC's police commissioner without a proper license.
- KMC is a small, for-profit media outlet started in 2020, primarily serving the Queens community, and had limited revenue and employees at the time of infringement.
- The photo was used in an article that received under 100 views during the photo's online availability; KMC credited an Instagram account, not the copyright holder, and earned no revenue from the article or photo.
- KMC's staff had experience in the publishing industry but lacked formal copyright compliance training at the time; they later improved compliance procedures after consulting with Cornell Law Center.
- Plaintiff did not attempt pre-litigation resolution (e.g., cease-and-desist letter); KMC removed the photo upon learning of the lawsuit and conceded liability, leaving only damages for trial.
- The court did not find willful or innocent infringement; instead, KMC's actions were negligent. The court awarded $940 in statutory damages and denied plaintiff's request for attorney's fees and costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Innocent vs. Willful | Defendant's experienced staff meant they acted recklessly | Believed crediting Instagram source was enough; no intent to infringe | Neither innocent nor willful; conduct was negligent |
| Amount of Statutory Damages | Requested $12,775, based on an online estimate, multiplied by 5 | Sought minimum statutory damages; no profit or loss from photo | $940 awarded, based on plaintiff’s daily rate |
| Injunctive Relief | Claimed only injunction could prevent future infringement | Already improved compliance; no likelihood of future infringement | Permanent injunction denied |
| Attorney’s Fees and Costs | Defendant’s late concession and litigation tactics warranted fees | Fees unwarranted; Plaintiff's own conduct hindered resolution | Denied attorney’s fees and costs |
Key Cases Cited
- Fitzgerald Publ'g Co. v. Baylor Publ'g Co., 807 F.2d 1110 (2d Cir. 1986) (Court’s discretion in setting statutory damages where both willfulness and innocence are unproven)
- Bryant v. Media Right Prods., Inc., 603 F.3d 135 (2d Cir. 2010) (Standards for statutory damages and willfulness under Copyright Act)
- D.C. Comics Inc. v. Mini Gift Shop, 912 F.2d 29 (2d Cir. 1990) (Factors for assessing innocent infringement, including absence of copyright notices)
- Graham v. James, 144 F.3d 229 (2d Cir. 1998) (Oral and implied licenses suffice for copyright use)
- Tru-Art Sign Co. v. Loc. 137 Sheet Metal Workers Int'l Ass'n, 852 F.3d 217 (2d Cir. 2017) (Post-judgment interest is mandatory in civil copyright cases)
- Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197 (2016) (Standard for discretionary attorney’s fees in copyright cases)
- Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) (Standards for awarding attorney’s fees under the Copyright Act)