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Shive v. J&C Baseball Clubhouse, Inc.

United States District Court, D. New Mexico

March 5, 2018

JAMES SHIVE, Plaintiff,
v.
J&C BASEBALL CLUBHOUSE, INC., Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         The 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.

         I) BACKGROUND

         The 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 magazine.
• 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.

         In 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.”).

         Pursuant 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. ยงยง 504(b)-(c). The jury was instructed as to these two categories of damages at trial, and ...


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