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holding that the publisher of a copyrighted newspaper should have been aware that its unauthorized republication of an article from the Washington Post constituted copyright infringement
Summary of this case from Am. Registry of Radiologic Techs. v. BennettOpinion
82 Civ. 4977 (LBS).
August 12, 1983. Findings of Fact and Conclusions of Law July 14, 1983.
Sheldon Bunin, Weisman, Celler, Spett, Modlin Wertheimer, New York City, for plaintiff.
Euger Ruben, Novaia Americana Gazeta, pro se.
ENDORSEMENT
No objections having been filed, the Findings of Fact and Conclusions of Law, dated July 14, 1983, of U.S. Magistrate Naomi Reice Buchwald are hereby adopted by the Court. The Magistrate's opinion is set forth below.
SO ORDERED.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
NAOMI REICE BUCHWALD, United States Magistrate.
As part of the default judgment rendered in the above-captioned matter, you referred this matter to Magistrate Bernikow who thereafter assigned it to me for a determination of damages. Plaintiff seeks $50,000 in statutory damages for willful infringement of her copyright and $3,500 in attorneys' fees. 17 U.S.C. § 504(c)(2), 505 (1976). Pursuant to my requests, the plaintiff has submitted a memorandum of law and an affidavit, dated July 5, 1983, in support of her claim for damages.
An especially disturbing instance of document destruction and alteration — a veritable "gate" type of coverup so egregious that this Court quite almost by reflex action termed it the "Vandenberg-gate" episode — was demonstrated by what happened to Ex. 167, p. 6. This was a photocopy of "Form 52" — "Request For Personnel Action" dated April 13, 1977, by which employees of defendants, having previously made up their collective, if not conspiratorial, minds to retaliate against plaintiff by cancelling out her position as EAM Project Planner (Grade 7) and "busting" or downgrading her to Clerk Typist (Grade 4), attempted to accomplish their planned reprisal. But this backfired when all the government could produce was this photocopy, which did not even have plaintiff's name on it, was rife with illegible handwritten notations, and covered with blank spaces obviously rendered blank, before photocopying, by the use of opaque tapes and erasures. These outrageous and transparent ex post facto, but ultimately self-defeating, alterations were only the worst of the several efforts made at Vandenberg Air Force Base in the vain undertaking to legitimize the reprisals and retaliatory activity taken against plaintiff. When the government finally had to admit that the original of this Form 52 could not be found because it had probably been destroyed in violation of Air Force rules and regulations, the misconduct of defendants was sealed.
This action arises out of the defendant's unauthorized translation and publication of the plaintiff's interview with the Deputy Prime Minister of Poland, Mieczylaw Rakowski, entitled, "Even An Angel Can Become A Whore," which was first published in the Washington Post on February 21, 1982. Defendant published a Russian translation of the article, using plaintiff's name and a photograph of the plaintiff interviewing Deputy Prime Minister Rakowski in its March 27-April 2, 1982 publication of the "New Gazette."
Under federal copyright law, a copyright owner may elect to recover actual damages and profits or statutory damages not less than $250 and not more than $10,000. 17 U.S.C. § 504. If the copyright owner elects to recover statutory damages and "sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $50,000." 17 U.S.C. § 504(c)(2). Professor Nimmer has noted that in this context "'willfully' means with knowledge that the defendant's conduct constitutes copyright infringement." 3 Nimmer on Copyright, § 14.04[B][3], at 14-27, 14-28 (1982).
Plaintiff argues, and we agree, that as the publisher of a copyrighted newspaper, the defendant was or should have been aware that its unauthorized republication of a Washington Post article constituted copyright infringement. Moreover, we draw a further inference of willfulness from the defendant's failure to appear and defend this action, especially in light of plaintiff's allegation of willfulness and demand for "increased statutory damages applicable to willful infringers." See Amended Complaint, ¶ 14, "wherefore clause." Compare Lauratex Textile Corp. v. Allton Knitting Mills, Inc., 517 F. Supp. 900, 904 (S.D.N.Y. 1981) (where the court drew a negative inference from the defendant's failure to testify) with Doehrer v. Caldwell, 207 U.S. P.Q. 391 (N.D.Ill. 1980) (where the court held that the defendant's default did not, of itself, establish willfulness). Accordingly, we conclude that plaintiff has met her burden of establishing a prima facie case of willful infringement.
As previously described in greater detail, the combined claims and complaints of plaintiff could have been effectively processed under Air Force Regulations, particularly AFR 40-713, thereby dispensing with the need of an appeal to any outside agency. Rather than looking upon the failure and refusal to process three of plaintiff's claims and complaints as a forced and therefore excusable inability to accomplish the processing under Air Force Regulations, it is the firm conclusion of this Court, following its extensive review of the exhibits in evidence and the testimony at trial, that plaintiff's grievances were all matters with which the Air Force simply, stubbornly, and contemptuously chose not to deal.
As the Ninth Circuit, in its unpublished opinion of December 14, 1981, dismissing the earlier appeal of this case, observed:
Not to be outdone by the confused state of the proceedings, the government seems to have changed theories of defense at every turn. It rejected Mrs. Clemente's first complaint as premature and her second complaint as untimely. Similarly, its brief on appeal argues that Mrs. Clemente's failure to contact an EEOC counselor within 30 days precluded district court jurisdiction, but at oral argument the government contended that her failure to exhaust administrative remedies prevents review.
Clemente v. United States of America, et al., 667 F.2d 1030, Slip Op. at 1 (9th Cir. 1981).
We now turn to the question of the amount of damages which should be assessed against the defendant and awarded to the plaintiff. In her affidavit, plaintiff states that non-exclusive republication rights to her articles are worth between $1,500 and $10,000 and that on the average she is paid $5,000 for such rights. Affidavit of Oriana Fallaci, sworn to July 5, 1983, ¶ 3. By her own estimation, the Russian translation and republication rights to this article would have been licensed for between $4,000 and $6,000. Id., ¶ 5. Ms. Fallachi states, however, that she would never have granted translation and republication rights to the defendant whose newspaper is not, in her opinion, a prestigious publication. Moreover, she claims that due to the defendant's "incompetent, inartful and slipshod translation" of her article, her reputation as a writer has been tarnished at least within the Russian community in New York City. Id., ¶ 5.
We note that there is a dearth of authority on the standards for awarding damages to the victims of willful infringements. In assessing damages for copyright infringement, courts have considered the fair market value of the rights infringed, Quinto v. Legal Times of Washington, 511 F. Supp. 579, 582 (D.D.C. 1981), the expenses saved and profits reaped by the defendant in connection with the infringement, the revenues lost by the plaintiff, Boz Scaggs Music v. KWD Corp., 491 F. Supp. 908, 914 (D.Conn. 1980), and the infringer's state of mind. Id. See also Milene Music, Inc. v. Gotauco, 551 F. Supp. 1288, 1296 (D.R.I. 1982). In Lauratex Textile Corp. v. Allton Knitting Mills, 517 F. Supp. 900, 903-4 (S.D.N.Y. 1981), where the defendant "made a practice of copying the designs of other[s]," the court held that "an award of statutory damages is appropriate as a deterrent to further activity of this kind." In a case involving the same parties, the court noted that the infringer had been a defendant in six copyright infringement actions in the previous three years and concluded that the "business of encroaching others' copyrights [was] not unfamiliar to the defendant." The plaintiff was then awarded $40,000 in statutory damages, approximately eight times its actual damages. Lauratex Textile Corp. v. Allton Knitting Mills, 519 F. Supp. 730, 733 (S.D.N.Y. 1981). See also Hospital for Sick Children v. Melody Fare Dinner Theatre, 516 F. Supp. 67, 72-73 (E.D.Va. 1980) (assessing $10,000 in damages against a willful infringer of "Peter Pan").
The Court recognizes that this assertion is directly contrary to Justice Powell's dissenting opinion in Owens at 445 U.S. 622, 670 n. 12, 100 S.Ct. 1398, 1425 n. 12, 63 L.Ed.2d 673. However, the principles articulated by the majority in Owen should be and are extended here to the federal government which, as conceded by Justice Powell, has a much greater financial ability to absorb such judgments than a municipal government. Id. at 670, 100 S.Ct. at 1425.
We find that the fair market value of the Russian language translation and non-exclusive republication rights to this article was $5,000. A willful infringer, however, should be liable for a substantial amount over and above the market value of a legitimate license for otherwise infringers would be encouraged to willfully violate the law knowing the full extent of their liability would not exceed what they would have to pay for a license on the open market. Under the circumstances of this case, we find that double the value of the republication rights is a reasonable deterrent. Accordingly, we respectfully recommend that plaintiff be awarded a judgment in the amount of $10,000.
Turning to the request for attorney's fees, plaintiff has made an application for $3,500 representing twenty-five hours of compensable time at an hourly rate of $140. Given the willful infringement of plaintiff's copyright we find that this is an appropriate case for the award of attorney's fees. Lauratex, supra, 519 F. Supp. at 734; Lauratex, supra, 517 F. Supp. at 904. Plaintiff's counsel has submitted contemporaneous time sheets showing the number of hours he and another lawyer spent on this case. Plaintiff's fee application is for an amount substantially less than the total number of hours actually expended. After an independent review of the record, we find plaintiff's request to be reasonable and accordingly, we recommend an award of $3,500 in attorney's fees.