MEMORANDUM OPINION & ORDER Plaintiff, Paul Reiffer, is a professional photographer. He created, and copyrighted, an image of the New York skyline framed by the Brooklyn Bridge and the East River. Mr. Reiffer’s name appeared in the image in bold text. Defendant, NYC Luxury Limousine Ltd., operates a limousine business in the New York City area. Defendant saw Plaintiff’s work and decided to use it as the main background image for Defendant’s commercial website — so it did. And in doing so, Defendant removed Mr. Reiffer’s name from the image. Defendant did not ask for permission. Because Defendant copied Plaintiff’s copyrighted image without permission and removed copyright management information from it, Defendant is liable for violations of the Copyright Act and the Digital Millennium Copyright Act. And because the position taken by Defendant in this litigation was objectively unreasonable, and dismissively trivialized Plaintiff’s action, Defendant must pay Plaintiff’s reasonable attorney’s fees and costs. I. BACKGROUND A. Facts Mr. Reiffer is a professional photographer. Defendant’s Response to Local Rule 56.1 Statement, Dkt. No. 35 (the “56.1 Response”) 1. In 2017, Mr. Reiffer created the photograph of the New York City skyline shown below (the “Work”). Id. 2. Dkt. No. 34, Ex. 2. When he created the Work, Mr. Reiffer applied “copyright management information” to the Work. 56.1 Response 3. As shown above, that information consists of Mr. Reiffer’s name in a white font superimposed over the deep blue of the East River: the information is clearly evident. Mr. Reiffer registered the Work with the Register of Copyrights on May 8, 2017. Id. 4; Dkt. No. 34, Ex. 1 (evidence of registration). On September 21, 2021, Mr. Reiffer discovered that an altered version of the Work was being used as the main background image on www.nynylimo.com (the “Website”). 56.1 Response 6. The Website is owned, controlled and operated by Defendant, which, as its name suggests, operates a limousine business. Id. 7. When Defendant placed the Work on its website, it altered the image. Most importantly, it cropped the image so that the copyright management information with Mr. Reiffer’s name could no longer be seen. Defendant also altered the Work by adding a stray black dot in the sky between the buildings to the left of the center of the Work. Id. 30. This is an image of the Work as it appeared on Defendant’s Website: Dkt. No. 34, Ex. 3. Defendant was not authorized to display the Work in any form. 56.1 Response
24-27. Defendant was not authorized to alter the Work; it was certainly not authorized to remove Mr. Reiffer’s name from the image. As a professional photographer, Mr. Reiffer licenses his images for money. Mr. Reiffer presented undisputed evidence that he has licensed other images for what he describes as “similar” use for between €5,800 and €8,900. Plaintiff’s Declaration in Support of Summary Judgment, Dkt. No. 34-8 (“Reiffer Decl.”) at 18; Dkt. No. 34-4. Mr. Reiffer has asserted that his price to license the Work for use on Defendant’s website would have been $8,500. Reiffer Decl. 18. B. Procedural History Mr. Reiffer initiated this action on March 23, 2022. Dkt. No. 1. The Court ordered the parties to attend mediation prior to the initial pretrial conference. Dkt. No. 7. On April 18, 2022, Defendant filed an answer to Plaintiff’s complaint. Dkt. No. 10 (the “Answer”). Ominous signs of Defendant’s unwillingness to engage meaningfully in the litigation emerged shortly thereafter. On June 22, 2022, the mediation office reported that the Court-ordered mediation had not taken place because “one or both parties failed…to participate in the mediation.” Dkt. No. 12. It soon emerged that Defendant’s counsel was the person who had failed to participate, for on the same date, Plaintiff’s counsel wrote the Court requesting an extension of time to complete the mediation. Dkt. No. 13. Plaintiff’s counsel reported that “Defendant’s counsel has been unresponsive to requests to confirm his availability to mediate….” Id. Plaintiff’s counsel asserted that he “continue[d] to believe that mediation would greatly benefit the parties at this point.” Id. at 2. Hopeful that the parties would work to resolve the case early through settlement discussions through the ordered mediation process, the Court granted the requested extension of time to permit the parties to engage in mediation to resolve the case. Dkt. No. 14. But on July 12, 2022, Plaintiff’s counsel sent the Court another letter writing to “inform the court of Defendant’s noncompliance with your Honor’s order….” Dkt. No. 15. Defendant’s counsel had not made himself available to mediate the dispute. Defendant responded the next day, sphinxlike, that “I am seeking to resolve this matter with my Adversary without Court intervention and will continue to do so.” Dkt. No. 16. The response did not explain why Defendant had not complied with the Court’s order that the parties participate in the Court’s (free) mediation program to help them resolve the case early. With Defendant unwilling or unable to attempt to resolve the case through the Court-ordered mediation, the case moved forward toward the scheduled initial pretrial conference. In its order scheduling the initial pretrial conference, the parties were directed to submit a joint letter to the Court in anticipation of the conference. Dkt. No. 8. The deadline for submission of that letter came and went, so the Court ordered the parties to comply. Dkt. No. 18. Plaintiff responded to the order later the same day. Dkt. No. 19. But rather than submitting a joint letter developed with the input of Defendant, Plaintiff submitted a letter that was written without the input of Defendant. In it, Plaintiffs informed the Court that “[d]espite best efforts, Plaintiff is unable to reach Defendant’s counsel which is inhibiting the resolution and progress of this case.” Id. at 3. Plaintiff still noted his desire to resolve the case early through a negotiated resolution: “Plaintiff[] would like to request a settlement conference.” Id. The Court held the initial pretrial conference on July 21, 2022. Defendant’s counsel appeared together with counsel for Plaintiff. During the conference, each of the parties had the opportunity to describe their view of the case. Defendant’s counsel described the case as a minor one, and notwithstanding his failure to attend the previously ordered mediation sessions, emphasized his interest in resolving the case through mediation: MR. DEMAIO: I think that it’s a very minor case. It lends itself to a prompt settlement. And I think that the best way to handle it, with your Honor’s indulgence, is maybe to — I’m mostly a state creature, I’m actually doing this case pro bono, this poor man lost everything during COVID — I’m hoping that we can set it down — in the state court we call it a mediation, I’m assuming that there’s a very similar procedure here in the federal court — where we can try to resolve it. He’s willing to pay some money. I don’t know that, should this ever go to verdict, since we have a single defendant, a corporation that’s now defunct, I think they would have a great deal of trouble collecting on the judgment, so I would like very much to get rid of this case. Transcript of July 21, 2022 Hearing (“July Tr.”) at 4:18-5:6. The Court responded to defense counsel’s remarks about the value of mediation in the case. THE COURT: So let me make a few remarks, and then we’ll talk about next steps. So first, yes, there is a mediation process here. I actually ordered that the parties attend mediation. Counsel for defendant, my understanding is that you chose not to participate.…So there is such a thing as mediation here. I ordered it. The parties, in this case — as I understand it, you — chose not to participate in it after an extension. So at this point, while I very much agree that mediation is the best approach, I’m going to put in place a schedule for full litigation of the case, given the parties’ failure to comply with my order to participate in mediation previously. I fully agree that mediation is the best way to resolve a case like this. But when parties refuse to comply with my order twice, I no longer take great credit that they’re going to do it. Id. at 5:13-6:7. The Court then set a schedule for completion of discovery in consultation with the parties. During the course of that conversation, counsel for Defendant asserted that “Defendant requests no discovery.” Id. at 7:23. Nonetheless, the Court established a discovery schedule designed to permit both parties the opportunity to conduct plenary discovery in the case. Prompted by Defendant’s counsel’s remarks about the need for discovery, the Court reminded him that the case was a real case until resolved. THE COURT: Counsel for defendant, just a brief note, you said that the defendant requests no discovery. I take no position on what your litigation strategy is. I just remind you, this is a real federal case. It will not go away. If you choose not to litigate it, your strategy is your own. I just remind you that your view regarding its importance does not change the fact that it is here and the fact that it must be litigated until it is resolved. Again, I hope that the parties will resolve it. But I also expect that counsel will take the case seriously for so long as it is pending. Id. at 16:9-18. Plaintiff’s counsel then requested that the Court schedule another opportunity for the parties to engage in mediation. Id. at 16:24-17:2 (“I understand that your Honor has already ordered mediation twice. We are still of the position that it would be helpful. I think that, perhaps, defendant’s counsel understanding the importance and real-life importance of this case would be more inclined to help us schedule the mediation.”). Following Plaintiff’s request, the Court asked Defendant’s counsel if it should again order the parties to mediation. “So agreed,” he responded. Id. at 17:14. Following the initial pretrial conference, the Court entered a case management plan and scheduling order establishing discovery deadlines for the case. Dkt. No. 22. The Court also ordered the parties back to mediation. Dkt. No. 21. Again, the parties did not participate in the Courtfacilitated mediation process, notwithstanding Defendant’s counsel’s request and agreement. See Dkt. No. 23. The parties then had the opportunity to conduct discovery. Plaintiff served his interrogatories and requests for production on Defendant on July 22, 2022. 56.1 Response 15. A few months later, on September 1, 2022, Plaintiff served his requests for admission on Defendant. Id. 16. The Court heard nothing from the parties until November 8, 2022, when Plaintiff filed a letter seeking leave to file a motion for the imposition of sanctions against Defendant as a result of its asserted failure to litigate the case. Dkt. No. 24. In the letter, Plaintiff asserted that Defendant had failed to respond to his discovery requests. Id. The Court held a conference to discuss Defendant’s failure to respond to Plaintiff’s discovery request on November 10, 2022. At the outset of the conference, the Court reprised its instructions during the initial pretrial conference. Transcript of November 10, 2022 Hearing (“November Tr.”) at 4:5-16. (“THE COURT: During the initial pretrial conference, the Court made a number of comments to the parties about the nature of the parties’ obligations to participate fully in litigation, even if they thought that the case might or should or ought to settle, reminding counsel for defendant, who informed us that he was here to essentially help a friend, that that doesn’t matter, and that, as counsel of record, he has full obligations to act consistent with his professional responsibilities on behalf of his client and that his client is bound by the consequences of his decisions as his agent.”). Plaintiff’s counsel then detailed Defendant’s failure to respond to his discovery requests, including Defendant’s failure to respond to his requests for admission within the thirty-day window after they were served. Defendant’s counsel admitted that he had not provided responses to the discovery requests. He explained his failure to respond as principally an outgrowth of the result of the fact that he thought that this was a case “that should go away.” Id. at 10:7-23 (“MR. DEMAIO: It is a case, I believe that should go away, and I can only imagine how busy your Honor is and how you have cases far more substantial.…This case is de minimis, it should not be proceeding. If your Honor wants to direct me to comply and in a reasonable amount of time, I guess I can do that.”). The Court reminded Defendant that “as I told the parties during our prior conference, in the absence of a settlement, this real, federal litigation proceeds…[c]ounsel for defendant, it does not matter that you think that the case ought not to be here. Defendants and parties do not get to choose to fail to comply with a court order because they wish that the case did not exist. That is simply not a legitimate argument.” Id. at 13:13-20. Defendant’s justification for its failure to respond timely to Plaintiff’s discovery requests was inadequate. The Court ordered Defendant to respond to the outstanding requests for production and interrogatories. Defendant did not request an extension of the deadline for it to respond to Plaintiff’s requests for admission. That deadline was not extended. See Dkt. No. 26. Following the Court’s order, Defendant responded to Plaintiff’s interrogatories and requests for production. 56.1 Response 20. Defendant never responded to Plaintiff’s requests for admission. Id. 19. On February 3, 2023, Plaintiff filed this motion for summary judgment, together with his supporting documents. On March 1, 2023, Defendant filed a brief opposing the motion for summary judgment in part. Dkt. No. 35 (“D’s Opp’n”). Critically, Defendant’s brief concedes Defendant’s liability. Id. at 1 (“Defendant concedes the unauthorized use of the duly registered image in question.”). But Defendant disputes the amount of damages that should be awarded. Defendant contends that Plaintiff failed to demonstrate “actual pecuniary damages,” asserting that Plaintiff’s assertion of a value of $8,500 for the license is unfounded. Id. at 2. Defendant also argues that the value of the image is low because “it defies credibility to believe customers choose a limousine service based upon the most ordinary picture of the New York skyline.” Id. As to the proper measure of damages, Defendant argues — without evidentiary support — that “[s]ince Plaintiff never licensed the image in the past, it appears he would have accepted a minimal amount, say $500 or $1000, if offered to exhibit it.” Id. at 3. Finally, Defendant contends that the Court should not exercise its discretion to award attorneys’ fees. In Defendant’s counsel’s view — the fact that Defendant “offered a minimal defense, sought no discovery and did not respond to the Notice to Admit” limited the expenses and attorneys’ fees incurred by Plaintiff, making an award of fees inappropriate. Id. at 4. Together with its submission, Defendant offered one “fact” in its own Local Rule 56.1 statement, namely that Defendant “upon Notice of the Violation, promptly removed the image from its website.” Defendant’s Local Rule 56.1 Statement, Dkt. No. 35 at 2. Defendant cited to the unverified Answer as the source for this “fact.” The motion was fully briefed on March 15, 2023, when Plaintiff filed his reply. Dkt. No. 36. Plaintiff did not respond to Defendant’s Local Rule 56.1 statement. II. LEGAL STANDARD A. Summary judgment Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“[S]ummary judgment is proper ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’” (quoting former Fed. R. Civ. P. 56(c)). The movant must “identify[] each claim or defense — or the part of each claim or defense — on which” it seeks summary judgment. Fed. R. Civ. P. 56(a). A genuine dispute exists where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” while a fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Factual disputes that are irrelevant or unnecessary will not be counted.” Id. The movant bears the initial burden of showing “the absence of a genuine issue of material fact.” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008) (citing Celotex, 477 U.S. at 323). If the movant carries that burden, the burden shifts to the non-movant to present “evidence sufficient to satisfy every element of the claim.” Id. (citing Celotex, 477 U.S. at 323). To defeat a motion for summary judgment, the non-movant “must come forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting former Fed. R. Civ. P. 56(e)) (emphasis omitted). “The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 252. And the non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. At summary judgment, the non-movant “may not rely on conclusory allegations or unsubstantiated speculation.” Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (quotation omitted). On a motion for summary judgment, a court is “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Johnson, 680 F.3d at 236 (quotation omitted). The court cannot “weigh the evidence or resolve issues of fact.” Lucente v. Int’l Bus. Machs. Corp., 310 F.3d 243, 254 (2d Cir. 2002) (citation omitted). “Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.” Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citation omitted). B. Admissions of Fact Defendant has admitted nearly all of the facts that are at issue in this motion in four ways: (1) through its Answer, (2) through its failure to respond timely to Plaintiff’s requests for admission; (3) through its responses to Plaintiff’s Rule 56.1 statement; and, (4) finally, and most obviously, in its briefing on the motion for summary judgment itself. 1. The Answer Defendant conceded some elements establishing its liability in its Answer. “Facts admitted in an answer, as in any pleading, are judicial admissions that bind the defendant throughout th[e] litigation.” Gibbs ex rel. Estate of Gibbs v. CIGNA Corp., 440 F.3d 571, 578 (2d Cir. 2006). Defendant admitted to the facts contained in paragraph 25 of the complaint, which asserted the following: “When NYC LL, LTD copied and displayed the Work at issue in this Case, NYC LL, LTD removed Reiffer’s copyright management information from the Work.” Dkt. No. 1 25; Answer 1. The Court highlights here, however, that Defendant did not concede all elements of Plaintiff’s claims; instead, Defendant expressly denied a number of allegations in the complaint. Answer 2. The Answer also presented a number of affirmative defenses, including an assertion that the copyright was invalid. Id. 8 (“The work at issue is not subject to copyright, is not properly registered and is not unique; and is virtually identical to thousands of other images in the public domain.”). The Answer also asserted that Plaintiff had not acquired “personal jurisdiction over This Answering Defendant.” Id. 7. It also contended that Plaintiff had failed to state a claim and that he had failed to meet “every legal prerequisite” and “every factual prerequisite” to the action. Id.
