United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
Honorable James O. Browning referred this copyright
infringement case to the undersigned to “conduct
hearings, if warranted, including evidentiary hearings, and
to perform any legal analysis required to recommend to the
Court an ultimate disposition of the case.” Doc.
81. Thereafter, Judge Browning entered default judgment
against Defendant J&C Baseball Clubhouse, Inc., and
referred this matter to the undersigned to conduct a jury
trial on the question of damages. Doc. 82. Trial was
held on February 22, 2018, and the jury returned a verdict in
favor of the Plaintiff, James Shive, for $36, 500.00 in
compensatory damages and $150, 000.00 in statutory damages.
Doc. 98. Mr. Shive elected to recover the statutory
damages awarded by the jury. Doc. 95. The
undersigned therefore recommends that the Court enter
judgment in favor of the Plaintiff, Mr. Shive, for the amount
of $150, 000.00.
following facts have been deemed true by virtue of
Defendant's default in this case:
• Plaintiff is a professional photographer.
• On May 27, 1978, Plaintiff took a photograph of
Clarence Clemons, the well-known saxophonist in the E Street
Band, at a concert at the Spectrum, the principal popular
music concert venue in Philadelphia, Pennsylvania.
• Clarence Clemons died on June 18, 2011.
• Soon after his death, Rolling Stone magazine
sought and obtained a license to use the Clemons Photograph
as part of a Tribute to Clarence Clemons' memory.
• The Clemons Photograph was then published in the
August 4, 2011 issue number 1136 of Rolling Stone
• Rolling Stone LLC registered its copyright in the
August 4, 2011 issue of Rolling Stone magazine with
the United States Copyright Office, which issued a
Certificate of Registration.
• During the winter of 2014-15 Plaintiff discovered that
Defendant was reproducing the Clemons Photograph and offering
it for sale over the internet without his permission.
• Effective January 20, 2015, Plaintiff obtained a
Certificate of Registration for the Clemons Photograph from
the United States Copyright Office.
• As such, Plaintiff has established that he owns the
copyright to the Clemons Photograph, and that J&C
reproduced the photograph without permission.
addition to ruling that these facts are true, the Court ruled
that the Defendant willfully infringed upon Plaintiff's
copyright, in violation of 17 U.S.C. §§ 106, 106A,
411 and 501. See Docs.1, 79, 82;
see, e.g., Erickson Productions, Inc. v. Only
Websites, Inc., 2016 WL 1337277 at *2 (S.D.N.Y. 2016)
(“Copyright infringement is deemed willful by virtue of
a defendant's default.”).
to 17 U.S.C. § 504(a), Plaintiff is entitled to
“recover the actual damages suffered by him or her as a
result of the infringement, and any profits of the infringer
that are attributable to the infringement and are not taken
into account in computing the actual damages, ” or
“an award of statutory damages for all infringements
involved in the action.” See 17 U.S.C.
§§ 504(b)-(c). The jury was instructed as to these
two categories of damages at trial, and ...