Prepared Food Photos, Inc. v. Mikeys Famous Marinades Corp.
2:23-cv-01484
E.D.N.YJul 31, 2023Background
- Plaintiff Prepared Food Photos, Inc. (formerly ADLIFE) created a photograph in 1996 and registered the copyright on December 30, 2016.
- Defendant Mikey’s Famous Marinades Corp. used the Photograph on its website for product advertising; Plaintiff discovered the use in July 2020.
- Defendant was properly served but defaulted—did not answer, respond, or participate in the proceedings.
- Plaintiff sought statutory damages of $23,976 (based on doubling a one‑year subscription fee of $11,988), attorney’s fees of $2,897.50, costs of $608.89, and a permanent injunction.
- The Court found liability, awarded statutory damages of $23,976, reduced attorney’s fees to $2,885 (reduced paralegal rate), awarded $402 in costs (filing fee only), granted a permanent injunction, and denied prejudgment interest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Liability for copyright infringement | Plaintiff alleged unauthorized use of its registered Photograph on Defendant’s website | No response — Defendant defaulted | Default establishes liability; Court accepts well‑pleaded allegations as true (default) |
| Statutory damages / willfulness | Seek $23,976 by doubling the one‑year subscription fee ($11,988) to account for lost revenue and deterrence | No response | Court found model persuasive and awarded $23,976 in statutory damages for willful infringement |
| Attorney’s fees (reasonableness) | Requested $2,897.50 based on counsel’s 18 years’ experience; paralegal billed at $125/hr | No response | Court approved counsel’s $450/hr and reduced paralegal rate to $100/hr; awarded $2,885 in fees |
| Costs (recoverable items) | Requested $608.89 (filing fee + process server) | No response | Court awarded $402 for filing fee; denied process server costs for lack of independent documentation |
| Permanent injunction | Sought permanent injunction to stop continued display/use | No response | Granted: all four eBay/Salinger equitable factors satisfied; Photograph remained on site and defendant defaulted |
| Prejudgment interest | Requested in passing | No supporting argument/evidence | Denied as waived/lacking legal support |
Key Cases Cited
- Finkel v. Romanowicz, 577 F.3d 79 (2d Cir. 2009) (defaulted defendant — court accepts well‑pleaded allegations and must still determine liability and damages)
- Bricklayers & Allied Craftworkers Local 2, Albany, N.Y. Pension Fund v. Moulton Masonry & Const., LLC, 779 F.3d 182 (2d Cir. 2015) (default concedes liability but not damages)
- Credit Lyonnais Sec., Inc. v. Alcantara, 183 F.3d 151 (2d Cir. 1999) (court must ascertain damages with reasonable certainty)
- Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105 (2d Cir. 1997) (standards for proving damages after default)
- Bryant v. Media Rights Prods., Inc., 603 F.3d 135 (2d Cir. 2010) (factors guiding statutory copyright damage awards)
- Castillo v. G&M Realty L.P., 950 F.3d 155 (2d Cir. 2020) (district courts have broad discretion in setting statutory damages)
- Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010) (four‑factor test for permanent injunctive relief, citing eBay)
- eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) (framework for injunctive relief in IP cases)