Phillips v. TraxNYC Corp.

Full title: MAURY PHILLIPS, Plaintiff, v. TRAXNYC CORP., Defendant.

Court: United States District Court, E.D. New York

Date published: Feb 14, 2023


The Court relies on the Complaint and Plaintiff’s submissions on the motion. Bricklayers & Allied Craftworkers Loc. 2 v. Moulton Masonry & Constr., LLC, 779 F.3d 182, 187-90 (2d Cir. 2015) (explaining that courts may “enter a default judgment if liability is established as a matter of law when the factual allegations of the complaint are taken as true” and that a plaintiff “is entitled to all reasonable inferences”).

Plaintiff is a commercial photographer residing in Los Angeles, California who specializes in images of individuals in the entertainment industry. (Compl., ECF No. 1 ¶ 1.) Defendant is a domestic business corporation existing under the laws of the State of New York, with headquarters in Rego Park, New York, and a storefront located at 64 West 47th Street, New York, New York 10036 (the “TraxNYC Address”). (Compl., ECF No. 1 ¶ 2.) Defendant owns, operates, and is solely responsible for the content on its commercial website, (the “TraxNYC Website”). (Id.)

On March 9, 1997, Plaintiff captured a photograph entitled “Notorious BIG-Maury Phillips Archives3.jpg” which depicts Wallace, Sean Combs (then known as Puff Daddy), and others in Los Angeles (the “Photograph”). (Id. ¶ 8; Compl. Ex. 1, ECF No. 1-1 at 2.) The Photograph was taken the same night that Wallace was killed. (Compl. Ex. 2, ECF No. 1-2 at 2.) Plaintiff posted the photograph on his website (the “Phillips Website”) with the watermark “Maury L. Phillips Photography ©” on March 10, 1997. (Id. at 2; see also Compl., ECF No. 1 ¶¶ 9-10.) On September 30, 2012, Plaintiff registered the photo with the United States Copyright Office with registration number VA-1-842-287. (Compl., ECF No. 1 ¶ 13; Certificate of Registration (“Certificate”), Compl. Ex. 4, ECF No. 1-4 at 2.)

Beginning on approximately September 1, 2012, Defendant posted a cropped version of the Photograph on the TraxNYC Website to advertise jewelry commemorating Combs and Wallace’s close relationship. (Compl. Ex. 3, ECF No. 1-3 at 2; see also Compl., ECF No. 1 ¶¶ 11-12, 14.) The cropped version depicted only Wallace and Combs and did not include  Plaintiff’s watermark. (Compl. Ex. 3, ECF No. 1-3 at 2.) TraxNYC did not have the Plaintiff’s permission or a license to use the Photograph. (Compl., ECF No. 1 ¶ 15.)

On May 18, 2020, Plaintiff’s counsel emailed a cease-and-desist letter addressed to Maksud Agadjani, the CEO of TraxNYC, at the TraxNYC Address and to the email address (May 18, 2020, Ltr., Compl. Ex. 5, ECF No. 1-5.) Counsel warned Agadjani that TraxNYC’s use of the Photograph infringed on Plaintiff’s copyright, and further requested that TraxNYC remove the Photograph from its website and pay $10,000 to compensate Plaintiff for the infringement. (Id. at 2-3; see Compl., ECF No. 1 ¶ 16.) After Defendant failed to remove the Photograph from its website, counsel for Plaintiff also exchanged emails and text messages with TraxNYC employees and counsel regarding the alleged infringement. (Supp. Mem. Ex. 1, ECF No. 25-1 at 7-44.) Defendant refused to remove the Photograph from its website despite multiple requests from Plaintiff. (Compl., ECF No. 1 ¶ 16.)



In summary, the Court finds that Plaintiff sufficiently alleges Defendant’s infringement under Section 504 of the Copyright Act and intentional removal of copyright management information under Section 1202 of the DMCA. Accordingly, the Court respectfully recommends granting Plaintiff’s motion for default judgment as follows: (1) a default judgment should be entered against Defendant and (2) Plaintiff should be awarded damages in the total sum of $38,252, which includes: (a) $10,000 in actual damages under the Copyright Act; (b) $25,000 in statutory damages under the DMCA; (c) $2,700 in attorneys’ fees; and (d) $552 in costs.

A copy of this Report and Recommendation is being served on Plaintiff via ECF. The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to the Defendant at the following addresses: TraxNYC Corp., 64-33 98th Street Apt. 6E, Rego Park, New York 11374 and TraxNYC Corp., 64 West 47th Street F-1, New York, New York 10036.

Within 14 days of service, any party may serve and file objections to this Report and Recommendation. 28 U.S.C. § 636(b)(1)(C)Fed.R.Civ.P. 72(b). Any requests for an extension of time to file objections shall be directed to Judge DeArcy Hall. If a party fails to object timely to this Report and Recommendation, it waives any right to further judicial review of this decision. Miller v. Brightstar Asia, Ltd.43 F.4th 112, 120 (2d Cir. 2022).


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