MEMORANDUM OPINION AND ORDER
C. LEROY HANSEN, Senior District Judge
THIS MATTER comes before the Court on Defendant Tom Vilsack's Motion to Dismiss for Failure to Prosecute (Doc. 32), filed April 2, 2010. The Court, having considered the motion, the briefs of the parties, and the applicable law, and otherwise being fully advised, finds that the motion is not well-taken and should be denied.
I. BACKGROUND
Plaintiff filed her Complaint on July 24, 2007, alleging disability discrimination and retaliation. Plaintiff sought and was granted an extension of time for effecting service until December 14, 2008. However, Defendant was not served until January 31, 2008. Defendant answered Plaintiff's Complaint on March 31, 2008.
An initial Rule 16 Conference was held on June 10, 2008, and a Scheduling Order was entered on June 17, 2008. Under the Scheduling Order, discovery was to be completed by October 24, 2008. Thereafter, Plaintiff sought and was granted an extension of time, until September 8, 2008, to submit her expert witness reports.
On September 10, 2008, Plaintiff filed an Unopposed Motion to Stay Case, because she was awaiting the final agency decision on a second, related discrimination complaint. Plaintiff represented that the parties were in agreement that, because of the similarity of the claims, litigating them collectively would be more efficient. The Court granted Plaintiff's request and stayed the matter pending the issuance of the final agency decision on the secondary complaint. The Court's Order provided that Plaintiff would be afforded "a reasonable opportunity to amend the complaint . . . to include the claims exhausted in that administrative complaint." (Doc. 32, at 1.)
The final agency decision on the second discrimination claim was issued on February 3, 2009, well after the 60-day time period allowed. See 29 C.F.R. § 1614.110(b) ("The agency shall issue the final decision within 60 days of receiving notification that a complainant has requested an immediate decision from the agency . . . The final action shall contain notice of . . . the right to file a civil action in federal district court."). Plaintiff received the final agency decision on February 20, 2009, and filed a Motion for Leave to File her Amended Complaint on May 20, 2009, 89 days later. Plaintiff's proposed Amended Complaint, which was attached as Exhibit 1 to her motion to amend, added a count for hostile work environment. Defendant opposed Plaintiff's motion on the basis of "unreasonable delay," lamenting that Plaintiff had waited nearly the entire 90 days within which she had to file the amendement. The Court, however, granted Plaintiff's motion to amend over Defendant's objection, without specifying a deadline for the filing of the Amended Complaint. Plaintiff filed her Amended Complaint eight months later, on April 4, 2010, Defendant's Motion to Dismiss for Failure to Prosecute having been filed in the interim.
Thereafter, a Joint Status Report and Provisional Discovery Plan was entered on June 3, 2010, and adopted by the Court on June 8, 2010. The Court also issued a Scheduling Order on June 8, 2010, setting a discovery deadline of November 5, 2010 and a dispositive motions deadline of December 6, 2010. To date, neither party has requested a continuance of these deadlines or has suggested that significant future delay is likely.
II. ANALYSIS
Defendant argues that a more than three-year delay in the proceedings has prejudiced his ability to defend the matter, noting that some of the allegations contained in Plaintiff's original complaint occurred as early as January 2003. Defendant outlines various delays by Plaintiff, including a delay in effecting service, but, primarily, Defendant complains that Plaintiff did not timely file either her motion to amend or her Amended Complaint. Plaintiff's counsel, on the other hand, suggests that any delay in the filing of the Amended Complaint resulted from inadvertent mistake on her part concerning local procedures or, at most, excusable neglect, neither of which warrant the severe sanction of dismissal.
Rule 41(b) of the Federal Rules of Civil Procedure provides in pertinent part that "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it." Fed.R.Civ.P. 41(b). A dismissal for lack of prosecution "is within the trial court's sound discretion." S.E.C. v. Power Res. Corp., 495 F.2d 297, 298 (10th Cir. 1974). There is no precise rule as to which circumstances will justify a dismissal for failure to prosecute; instead, courts must examine the procedural history of each individual case to make a determination. Id. at 298. The factors to be considered by the courts in reaching this determination include:
(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions.
Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992). Dismissal is warranted when "the
aggravating factors outweigh the judicial system's strong predisposition to resolve cases on their merits."
Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1144 (10th Cir. 2007). In
Meade v. Grubbs, 841 F.2d 1512, 1520 n. 6 (10th Cir. 1988), the Tenth Circuit noted that "[d]ismissal of an action with prejudice is a severe sanction, applicable only in extreme circumstances. Because dismissal with prejudice defeats altogether a litigant's right to access to the courts, it should be used as a weapon of last, rather than first, resort."
Id.
Applying the Ehrenhaus factors, the Court concludes, first, that while there may have been some prejudice to Defendant as a result of the lack of progress in litigating this case to date, it remains relatively slight. Defendant certainly has a legitimate interest in bringing the matter to closure within a reasonable time. Likewise, the Court acknowledges that the memories of witnesses do tend to dim over time and that in this case many of the facts alleged in Plaintiff's Amended Complaint occurred many years ago. However, Defendant's concern over lost witnesses and forgotten testimony is mitigated, at least in part, by the opportunity that Defendant had to obtain sworn statements through participation in the administrative phase of the case. Additionally, according to the Joint Status Report and Provisional Discovery Plan filed on June 3, 2010, only one of Defendant's intended witnesses is no longer employed by it, and there is no indication that Defendant will have difficulty locating that now-retired witness. Finally, this is not a case where Defendant has been inconvenienced by delay after trial preparations were underway. Cf. Rogers v. Andrus Transp. Servs., 502 F.3d 1147, 1152 (10th Cir. 2007) (concluding that the defendant was prejudiced by the plaintiff's failure to prosecute her case where defendant had already conducted trial preparations); In re Baker, 744 F.2d 1438 (10th Cir. 1984) (en banc) (noting that the plaintiff and third party defendant's delay in deposing a witness forced the court to postpone the trial where the date was set and the jury planned). Defendant readily admits in his reply brief that "essentially nothing has happened in this case in preparation for trial." (Doc. 38, at 5.)
Next, the Court considers the amount of interference with the judicial process that has been caused by the delay in trying this case. As a preliminary matter, the Court notes that, because of the robust administrative process required in federal employment discrimination cases, a delay of more than three years in disposing of a matter that was stayed pending the exhaustion of related claims is not unheard of. Additionally, the timeliness of Plaintiff's motion to amend was previously addressed by this Court in its July 29, 2009 Memorandum, Opinion, and Order, in which the Court concluded that Plaintiff's motion was timely and would not be denied in the absence of a showing of bad faith and undue delay. (Doc. 23, at 3.) As noted in its previous Order, Plaintiff filed her motion to amend within the 90-day jurisdictional requirement proscribed by 29 C.F.R. § 1614.407. At the time it entered its ruling on the issue, the Court did not consider the timing of Plaintiff's motion to amend to be unreasonably detrimental to an efficient judicial process, nor does it now.
With regard to Plaintiff's eight-month delay in formally filing her Amended Complaint, any interference with the judicial process was certainly minimized by the fact that the proposed Amended Complaint was made a part of the record, as an exhibit to Plaintiff's motion to amend. As such, the yet-to-be-formally-filed amended pleading was available to the Court and Defendant alike as of May 5, 2009, and Defendant had notice of all of Plaintiff's claims as of that date. Moreover, the Court did not direct Plaintiff in its July 29, 2009 Order to file her amended complaint by a certain deadline, ( see Doc. 23), and considering the silence of the local rules on this matter, the Court is somewhat sympathetic to the predicament of Plaintiff's out-of-state counsel regarding the local practice of attorneys filing their own amended pleadings.
At the same time, the Court urges counsel for Plaintiff to confer with local counsel or directly with the Court on future issues that may arise concerning local procedural practice.
Third, the record does not support the conclusion that Plaintiff herself has shared any culpability in the alleged delay in prosecuting the present case, perhaps with the exception of a slight delay in effecting service. Moreover, the Court finds only minimal culpability on the part of Plaintiff's counsel. Plaintiff's counsel explains that the delay in the filing of the Amended Complaint was the result, initially, of an inadvertent mistake on her part concerning the filing rules for this district, which was then compounded by preparations for trial in another matter and a long-standing medical condition requiring surgery and significant time away from work. The Court concludes that the delay by Plaintiff's counsel is less flagrant than in other cases that have justified dismissal. See, e.g., Rogers, 502 F.3d at 152-53 (upholding dismissal where plaintiff did not prosecute action for almost two years and counsel did not alert the court that his client was incarcerated); Food Basket, Inc. v. Albertson's, Inc., 416 F.2d 937 (10th Cir. 1969) (affirming the trial court's dismissal under Fed.R.Civ.P. 41(b), where, after more than seven months, counsel for Plaintiff had taken no action to amend the complaint, despite a mandate suggesting that an amendment was necessary, and offered no reasonable explanation or excuse for the inaction).
In Davis v. Miller, 571 F.3d 1058 (10th Cir. 2009), the Tenth Circuit reversed the trial court's dismissal of an action under Fed.R.Civ.P. 41(b), even though counsel for the plaintiff missed five court-imposed deadlines for filing an amended petition. Id. at 1060. There, counsel claimed that computer problems and a family medical crisis had exacerbated his lack of diligence in amending his client's pleading. Id. The Tenth Circuit found the dismissal of the case to be an inappropriate sanction "because [the client] was not at fault and because the record [did] not support a conclusion that counsel's action rose to the level of `willful misconduct.'" Id. at 1063. If dismissal was inappropriate in Davis, it is certainly inappropriate here, where Plaintiff's counsel has not missed explicit deadlines for the filing of the amended complaint and has offered relatively compelling justifications for her delay.
Significantly, the Tenth Circuit has admonished lower courts to "impose the sanction where the fault lies . . . If the fault lies with the attorneys, that is where the impact of the sanction should be lodged. If the fault lies with the clients, that is where the impact of the sanction should be lodged." Davis, 571 F.3d at 1061; see also In re Baker, 744 F.2d at 1440, 1442. Because the culpability of Plaintiff herself is slight, if not absent, this factor weighs heavily against dismissing the action and foreclosing a resolution on the merits.
The Court also notes that Defendant is not blameless with regard to delay in this matter. Plaintiff requested a final agency decision on a second, related discrimination complaint on February 9, 2008, and a month later the administrative judge directed Defendant to issue a final agency decision. Yet it took Defendant nearly a year to issue its final agency decision, well beyond the 60 days allowed by statute. See 29 C.F.R. § 1614.110(b). Defendant readily concedes that its final agency decision was not issued "in a timely manner." (Doc. 38, at 2.) Indeed, at least one-third of the three-year period of delay in litigating this matter was directly attributable to Defendant. Additionally, the Court finds Defendant's delay to be more egregious than Plaintiff's delay; after all, unlike Defendant, Plaintiff acted within the statutory period when she filed her motion to amend.
In the meantime, Plaintiff moved the Court to stay this action pending a final agency decision in the secondary complaint, so that she could amend her complaint to include the additional claim once exhausted.
Fourth, this Court has not offered any warning to Plaintiff that it might dismiss her case for failure to prosecute. To date, the Court has only addressed Defendant's position on the issue of delay in the context of granting Plaintiff's motion to amend her complaint over Defendant's objection of untimeliness. Although a warning is not a sine qua non for dismissal, that the Court has not issued a warning of impending dismissal weighs in favor of denying Defendant's request for such a drastic remedy.
Finally, with respect to the efficacy of lesser sanctions, Defendant's only alternative request for sanctions is to strike Plaintiff's Amended Complaint, effectively eliminating her hostile work environment claim. As with Defendant's primary request, the Court does not find this similarly drastic sanction to be warranted under the circumstances. Defendant has not requested another alternative sanction, and no appropriate lesser sanction occurs to the Court.
III. CONCLUSION
Having considered 1) the degree of actual prejudice to Defendant; 2) the amount of interference with the judicial process; 3) the culpability of the litigant; 4) whether the Court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and 5) the efficacy of lesser sanctions, the Court finds none of the aggravating factors outweigh the judicial system's strong predisposition to resolve cases on their merits.
IT IS THEREFORE ORDERED that Defendant Tom Vilsack's Motion to Dismiss for Failure to Prosecute is hereby denied.
gainst Burge, Televised Visual X-Ography, Inc. ("TVX"), and several other companies that were allegedly distributors or retailers of the Body Magic DVD (Doc. 1;
see also Docs. 20, 86).
The plaintiff alleges in her second amended complaint against TVX and Burge claims of direct,
contributory, and inducement of copyright infringement; statutory and common law misappropriation of her image; defamation by implication; conspiracy to commit defamation and to misappropriate; and intentional infliction of emotional distress (Doc. 86).
By commencement of the trial, TVX and Burge were the only remaining defendants. The plaintiff had voluntarily dismissed the other defendants (Docs. 18, 34, 44, 54, 57, 115, 118).
The plaintiff moved for entry of defaults against TVX and Burge based on their failure to respond to her Second Amended Complaint and TVX's failure to obtain corporate counsel (Docs. 62, 89). The court granted the motions for entry of default pursuant to Rule 55(a), F.R.Civ.P., and the Clerk accordingly entered defaults against them (Docs. 64, 65, 90, 91). After the parties consented to my jurisdiction (Docs. 76, 77), Burge and TVX filed a Motion to Set Aside the Defaults (Doc. 92). The court heard oral argument on this motion and, after due consideration, denied the motion (Docs. 97, 98).
The plaintiff subsequently filed Motions for Final Default Judgment pursuant to Rule 55(b), F.R.Civ.P., and requested a trial to establish her unliquidated damages (Doc. 99). In a supplemental memorandum on liability, the plaintiff abandoned her claims of inducing copyright infringement, conspiracy to misappropriate, and conspiracy to commit defamation by implication (Doc. 107, pp. 17, 23, 29).
On May 6, 2010, the court issued an Order scheduling a non-jury trial on damages for July 21, 2010 (Doc. 110). After the trial, the plaintiff, in accordance with the court's order, filed a memorandum of law setting forth her damage calculations (Doc. 121).
Defendants Burge and TVX were sent notice of this Order on May 7, 2010. On July 16, 2010, less than one week before trial, the court received a motion from the defendants to postpone the hearing on damages and for permission to file a written response in lieu of an appearance at trial (Doc. 111). That motion, which was opposed by the plaintiff, was denied because it did not state adequate cause for an indefinite continuance of the trial (see Docs. 112, 113).
II.
The plaintiff has established the defendants' liability on her claims of direct copyright infringement, statutory misappropriation of her image, and defamation by implication. However, the plaintiff has failed to prove contributory infringement, or satisfy the stringent standard necessary to establish a claim of intentional infliction of emotional distress. Furthermore, she affirmatively abandoned her claim for "Conspiracy to Commit Defamation by Implication" (Doc. 107, p. 29).
With regard to the plaintiff's successful claims, the defendants' "default[s have] not [been] treated as . . . absolute confession[s] by the defendant[s] of [their] liability and of the plaintiff's right to recover." Nishimatsu Constr. Co., Ltd. v.Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). However, by defaulting, the defendants are deemed to have "admit[ted] the plaintiff's well-pleaded allegations of fact" for purposes of liability. Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir. 1987). In this case, the allegations in the second amended complaint, and the plaintiff's trial evidence, satisfy each element of the plaintiff's claims for direct copyright infringement, defamation by implication, and statutory misappropriation of image. Accordingly, final judgment as to liability will be entered on those claims. See id.
Furthermore, during the trial, the plaintiff testified in an articulate and convincing manner regarding the events giving rise to this lawsuit, including the emotional distress, humiliation, impaired relationships, and damage to her reputation caused by the defendants' conduct. I find that the plaintiff's testimony was fully credible; it was presented in a straightforward manner without embellishment or histrionics. This does not mean, however, that the plaintiff's subjective assessment of the value of her injuries will be accepted uncritically. As discussed below, I therefore find that she is entitled to an award of damages totaling $129,173.20.
A. Copyright Infringement.
"To establish a prima facie case of copyright infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1232-33 (11th Cir. 2010). The defendants' unauthorized use of the plaintiff's original self-portrait "No Easy Way Out" on the cover insert and disc art ("packaging") of their pornographic movie DVD Body Magic constitutes direct copyright infringement.
The plaintiff did not register her copyright in the photograph "No Easy Way Out" (Doc. 121, p. 3, n. 1). Although copyright registration is generally required for ownership of a valid copyright, it is not necessary for works originating in England, a signatory country to the Berne Convention. See The Football Assn. Premier League. Ltd. v. YouTube, Inc., 633 F.Supp.2d 159, 163-64 (S.D. N.Y. 2009).
Pursuant to 17 U.S.C. 504, a copyright infringer is liable for the copyright owner's actual damages and any additional profits of the infringer that are not taken into account in computing the actual damages. The plaintiff seeks an award of damages for copyright infringement totaling $4,249, which comprises $3,077 in actual damages and $1,172 in infringer's profits (Doc. 121, pp. 2-6).
The Copyright Act also provides for awards of statutory damages and attorney's fees. See 17 U.S.C. 504(a)(2), 505. However, as the plaintiff acknowledges (Doc. 121, p. 3 n. 1), she is not eligible for this relief because "no award of statutory damages or of attorney's fees . . . shall be made for" unregistered works. 17 U.S.C. 412.
1. Actual damages
The plaintiff's actual damages are based upon a licensing fee she charges for use of her photographs (id., pp. 3-5). In appropriate circumstances, a "reasonable license fee," that is, the fair market value of a license authorizing defendants' use of the copyrighted work, may be awarded as actual damages under the Copyright Act. See On Davis v. The Gap. Inc., 246 F.3d 152, 166-68 (2nd Cir. 2001);McRoberts Software, Inc. v. Media 100, Inc., 329 F.3d 557, 566 (7th Cir. 2003).
Although a licensing fee in this case is somewhat hypothetical because the plaintiff would not have licensed her photograph for use in this manner, this measure of damages is appropriate because the defendants used the plaintiff's copyrighted photograph, and she is entitled to be compensated for its use.See On Davis v. The Gap, Inc., supra, 246 F.3d at 172 ("The hypothesis of a negotiation between a willing buyer and a willing seller simply seeks to determine the fair market value of a valuable right that the infringer has illegally taken from the owner. The usefulness of the test does not depend on whether the copyright infringer was in fact himself willing to negotiate for a license."); McRoberts Software, Inc. v. Media 100, Inc., supra, 329 F.3d at 567 (a licensing fee is an appropriate measure of damages absent evidence that the parties would have contracted for the plaintiff's products because the plaintiff "is entitled under the Copyright Act to recover actual damages resulting from the infringement of its copyright").
In this regard, the plaintiff presented at trial uncontroverted evidence that she charges licensing fees for use of her photographs, including the "No Easy Way Out" photograph. In support of her request for a licensing fee of $3,077, the plaintiff presented evidence that she received a £2000 licensing fee from book publisher Harper Collins to use her photography on its book cover (see Pl. Ex. 8). The plaintiff asserts that this £2000 licensing fee is equivalent to $3,077 in U.S. dollars (Doc. 121, p. 4).
According to the plaintiff, the conversion rate in 2010 has varied from .61 to .70 (Doc. 114; Doc. 121, p. 4). The plaintiff suggested, reasonably enough, the use of a .65 conversion rate in this case.
The plaintiff's receipt of a £2000 licensing fee to use her photograph on a book cover is analogous to the defendants' use of the plaintiff's photograph on the cover (and disc art) of their DVD movie. Furthermore, there is nothing in the record controverting the reasonableness of this amount. Therefore, the plaintiff will be awarded $3,077 in actual damages based on the loss of a licensing fee.
2. Infringer's profits
Additionally, the plaintiff requests an award of the defendants' profits from the sale of the infringing Body Magic movie DVD. Since the plaintiff's licensing fee does not take into account the defendants' profits from the movie, she is entitled to these profits as well. See 17 U.S.C. 504(b).
In establishing the infringer's profits, the copyright owner is required to present proof of the infringer's gross revenue. Id. The infringer is then "required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work." Id.
The plaintiff alleges that the defendants' profits totaled $1,171.97 (Doc. 121, p. 6). This calculation is based on the defendants' sale of 234 Body Magic DVDs at a price of $5 or $8 each (id., p. 5; see Pl. Exs. 35-38). The plaintiff deducted from that sum estimated production costs of 70 cents per DVD (Doc. 121, p. 6), although it was not her obligation to do so. See 17 U.S.C. 504(b).
The plaintiff's contention that the defendants sold 234 Body Magic DVDs is based upon an unreliable "TVX Home Video Inventory Item Quick Report" (Doc. 121, p. 5, citing Pl. Ex. 39). Thus, the sum of the sales and credits on the inventory report does not equal the 1,000 copies of the movie produced by the defendants (Pl. Ex. 39). Furthermore, the plaintiff's sales figure does not account for movie returns identified in the inventory report (see Pl. Ex. 39; Pl. Ex. 46, pp. 85, 124). Thus, the plaintiff's sales calculation is clearly flawed.
A more reliable computation of sales is to subtract the number of Body Magic DVDs that Burge allegedly destroyed (811) from the number of copies he produced (1,000) (see Pl. Exs. 32, 39; Pl. Ex. 46, pp. 123-24). This calculation reflects sales of 189 Body Magic DVDs. At an average sale price of $6.50 per disc, the gross profit is $1,228.50. After deducting the infringer's estimated costs of 70 cents per disc ($132.30), the compensable infringer's profit is $1,096.20.
It was the defendants' burden to show its costs. Therefore, although the plaintiff did not explain how it determined the defendants' cost of 70 cents per disc, that amount will be accepted.
Accordingly, the plaintiff will be awarded on her direct copyright infringement claim damages of $4,173.20, comprising actual damages of $3,077, and infringer's profits of $1,096.20.
B. Contributory Copyright Infringement
The plaintiff has also alleged a claim of contributory infringement. A contributory infringer is "one who, with knowledge of the infringing activity, induces, causes[,] or materially contributes to the infringing conduct of another." Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 8456 (11th Cir. 1990). The plaintiff alleges that the defendants are liable for contributory copyright infringement based on their sale of infringing Body Magic DVDs to retailers and distributors (Doc. 86, ¶¶ 36-44, 64-69; Doc. 107, pp. 9-16).
However, the plaintiff has not shown that the defendants had knowledge of the infringement when they distributed the infringing Body Magic DVDs to retailers and distributors. See Cable/Home Communication Corp. v. Network Productions, Inc.,supra. Thus, the plaintiff merely asserts conclusory allegations and legal conclusions that the defendants had "knowledge of the infringing activity" and that their infringing "conduct . . . [was] willful and intentional" (Doc. 86, ¶¶ 64, 69). See Buchanan v. Bowman, supra, 820 F.2d at 361 (upon default, only "well-pleaded allegations of fact" are deemed admitted). Further, these allegations are contradicted by the undisputed evidence that the defendants ordered the infringing Body Magic packaging in November 2006, and they were unaware of the infringement until the plaintiff notified them in January 2007, at which time they immediately took steps to cease use of the plaintiff's photograph (see Pl. Exs. 17, 18, 32, 33, 34).
Furthermore, an award of damages on this claim would constitute an impermissible double recovery. Thus, the compensatory damages requested under this claim mirror those for which she is receiving compensation under her direct copyright infringement claim (Doc. 121, p. 2), and the plaintiff has made no attempt to distinguish them as separate injuries. See Indu Craft, Inc. v.Bank of Baroda, 47 F.3d 490, 497 (2nd Cir. 1997), cert. denied, 519 U.S. 1041 (1996) ("A plaintiff seeking compensation for the same injury under different legal theories is of course entitled to only one recovery."). Therefore, the plaintiff failed to establish liability or damages on the contributory infringement claim.
C. Statutory Misappropriation of Image
The plaintiff also claims that the defendants misappropriated her image, in violation of Fla. Stat. § 540.08. That statute provides, in pertinent part:
No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any
natural person without the express written or oral consent to such use given by [such person].
The undisputed evidence shows that the plaintiff's self-portrait was placed, without her permission, prominently on the packaging of the Body Magic DVD for the purpose of marketing a pornographic movie with which she had no association. These facts constitute a violation of this statute. See, e.g., Gritzke v. M.R.A. Holding, LLC, No. 4:01CV495-RH, 2002 WL 32107540 (N.D. Fla.) (unauthorized use of a woman's image on the cover of a "Girls Gone Wild" video violates Fla. Stat. § 540.08).
Fla. Stat. § 540.08(2) provides that a prevailing plaintiff may recover: (1) "damages for any loss or injury sustained by reason . . . [of the misappropriation,] including an amount which would have been a reasonable royalty," and (2) punitive or exemplary damages. The plaintiff requests compensatory damages of $770 for a "licensing fee," and $25,000 for harm to her professional reputation (Doc. 121, pp. 2, 9). Additionally, she seeks $25,000 in punitive damages (id.).
1. Compensatory damages
The plaintiff's request for a $770 licensing fee (id., p. 2) is not well-taken because the plaintiff has already been compensated for the loss of a licensing fee in connection with her copyright infringement claim, and the plaintiff has not distinguished this licensing fee as a separate injury. Therefore, because recovery of a licensing fee under this claim would constitute an impermissible double recovery, it is denied. See Indu Craft, Inc. v. Bank of Baroda, supra, 47 F.3d at 497 (a plaintiff may not recover damages twice for the same injury simply because she has two legal theories); see, e.g., Besett v. Basnett, 437 So.2d 172, 173 (Fla. App. 1983).
On the other hand, the plaintiff has shown that she is entitled to $25,000 for harm to her reputation caused by the defendants' misappropriation of her photograph (Doc. 121, p. 9). Harm to reputation caused by the misappropriation of a plaintiff's likeness is a compensable damage. See Restatement Second of Torts, § 652H, pp. 401-02, comment a; see, e.g., Clark v. Celeb Publishing, Inc., 530 F.Supp. 979, 983-84 (D.C. N.Y. 1981) (damages awarded to a model whose photographs were used in a pornographic magazine without her authorization and resulted in the loss of modeling jobs).
The plaintiff, a professional photographer and model who has no association with the pornographic industry, has suffered harm to her professional reputation due to the defendants' unauthorized use of her photograph on the packaging of a pornographic movie DVD. Specifically, the plaintiff testified that her photograph has been recognized on the packaging of Body Magic and, consequently, she has had to explain this situation to potential clients. Furthermore, she stated that she has not been hired by at least one major client because her photograph appears on the packaging of a pornographic movie DVD. Thus, the plaintiff testified that Canon, a famous camera manufacturer, has declined to employ her as a model or photographer pending resolution of this case.
Under the totality of these circumstances, $25,000 compensation for harm to the plaintiff's reputation is reasonable. Although the plaintiff has not established $25,000 in lost jobs due to this circumstance, it is well-established that "proof of actual harm need not be of pecuniary loss." See Restatement Second of Torts, § 652H, p. 402, comment c. As summarized in Lugosi v. Universal Pictures, 603 P.2d 425 (Sup. Ct. Calif. 1979):
Often considerable money, time and energy are needed to develop one's prominence in a particular field. . . . For some, the investment may eventually create considerable commercial value in one's identity. . . . The loss may well exceed the mere denial of compensation for the use of the individual's identity. The unauthorized use disrupts the individual's effort to control his public image, and may substantially alter that image.
Here, it is undisputed that the defendants' misuse of her photograph has tarnished the plaintiff's image and disrupted her ability to control that image. Therefore, the plaintiff will be awarded $25,000 compensation for harm to her reputation caused by the plaintiff's violation of Fla. Stat. § 540.08.
2. Punitive damages
The plaintiff asserts, in a conclusory manner, that she is entitled to $25,000 in punitive damages pursuant to Fla. Stat. § 540.08(2) (Doc. 121, p. 9). Although the defendants' unauthorized use of her self-portrait clearly violates Fla. Stat. § 540.08, their misconduct does not meet the "high standard" necessary for the imposition of punitive damages. Weinstein Design Group, Inc. v. Fielder, 884 So.2d 990, 1001 (Fla. App. 2004).
Thus, "punitive damages are reserved for particular types of behavior which go beyond mere intentional acts." Id.; Genesis Publications, Inc. v. Goss, 437 So.2d 169, 170 (Fla. App. 1983). Such an award requires evidence of "intentional, wanton and malicious disregard" for the plaintiff's rights. Genesis Publications, Inc. v. Goss, supra, 437 So.2d at 170 (citing Winn Lovett Grocery Co. v. Archer, 171 So.2d 214, 221 (Fla. 1936)). In this context, a significant consideration is whether the defendant knew that it lacked permission to use the plaintiff's image. See Weinstein Design Group, Inc. v. Fielder, supra, 884 So.2d at 1001; Sun Int'l Bahamas, Ltd. v. Wagner, 758 So.2d 1190, 1191 (Fla. App. 2000); Genesis Publications, Inc. v. Goss, supra, 437 So.2d at 170-71.
The plaintiff has not shown that the defendants' conduct warrants punitive damages because there is no evidence that the defendants knowingly infringed the plaintiff's rights. To the contrary, the defendants did not even choose the plaintiff's photograph for the Body Magic DVD packaging; rather, the defendants employed A.J. Cohen Studios for this purpose (Pl. Exs. 18, 22, 31; Pl. Ex. 46, pp. 52-53, 74). See Genesis Publications, Inc. v. Goss, supra, 437 So.2d at 169 (a magazine's publication of a nude photograph of the plaintiff in an advertisement without her permission did not warrant punitive damages because the defendant had relied on advertising agencies to obtain the necessary permission for use of the photographs). Furthermore, the undisputed evidence is that the defendants did not learn of the infringement until the plaintiff contacted them in January 2007, ten months after they produced the Body Magic DVDs (see Pl. Exs. 18, 33, 34; Pl. Ex. 46, p. 75).
Cohen stated that he discovered the plaintiff's photograph on a free usage picture website which hosts public domain images for all uses (Pl. Ex. 26).
The absence of malicious intent is underscored by Burge's attempts to remediate the situation when he learned of the infringement. Thus, Burge changed the photograph on the Body Magic packaging and recalled from distributors infringing Body Magic DVDs (see Pl. Exs. 18, 22, 23, 26, 40; Pl. Ex. 46, pp. 75, 85, 123). Furthermore, Burge testified that he destroyed by fire all 811 infringing discs in his possession, and tore up all of the infringing cover inserts (Pl. Ex. 46, pp. 123-24).
The plaintiff emphasizes that her counsel was able to purchase in June 2007 Body Magic movie DVDs with her photograph on the disc art. However, the plaintiff has failed to show that the defendants themselves, as opposed to distributors, continued to sell the infringing DVDs after they received notice of their violation since approximately 200 discs remained in circulation.
In sum, punitive damages are not warranted because the evidence does not show that the defendants acted in "intentional, wanton, and malicious disregard" for the plaintiff's rights when they used her self-portrait on the packaging of their pornographic movie DVD. See Genesis Publications, Inc. v. Goss, supra. At most, the defendants' conduct constitutes negligence for failing to confirm that the photograph was in the public domain for free use. Accordingly, the plaintiff's request for punitive damages is denied.
D. Common Law Misappropriation of Image
The plaintiff's complaint also alleges common law misappropriation of her image (Doc. 86, pp. 33-35). The plaintiff may assert common law and statutory claims for misappropriation in the same action. Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1320 n. 1 (11th Cir. 2006). Furthermore, the elements establishing both claims "are substantially identical." Id. Therefore, based on the analysis of the plaintiff's statutory claim of misappropriation, supra, the defendants are also liable for common law misappropriation of the plaintiff's image. However, the plaintiff has failed to establish that she is entitled to any damages under this claim.
The plaintiff seeks $25,000 in compensatory damages for the defendants' misappropriation of her photograph (Doc. 121, pp. 2, 10). It is unclear, however, whether this compensatory damage is distinct from the compensatory damage she is receiving for harm to her reputation under the statutory misappropriation claim.
Thus, the plaintiff merely asserts in a conclusory manner that "$25,000 would be reasonable compensation for the misappropriation of her likeness by the Defendants" (id., p. 10). If this claim is distinct from the injury asserted in her statutory misappropriation claim, it is denied because the basis for such an award is not explained.
To the extent that the plaintiff is seeking damages for harm to her reputation, it is denied as an improper double recovery, as she already has been awarded $25,000 for that injury. See Atl. Coast Line R. Co. v. Saffold, 178 So. 288, 290 (Fla. 1938) ("Double damages are not legally recoverable"). Thus, as previously indicated, the plaintiff may not recover damages twice for the same injury simply because she has two legal theories.See, e.g., Besett v. Basnett, supra, 437 So.2d at 173.
The plaintiff may be suggesting that she is entitled to a double recovery based upon Fla. Stat. § 540.08(7), which provides that, "[t]he remedies provided for in this section shall be in addition to and not in limitation of the remedies and rights of any person under the common law against the invasion of her . . . privacy" (see Doc. 121, p. 10). However, the language of this statute does not authorize a double recovery, and the plaintiff has not cited any legal authority supporting such a construction of this statute. Rather, this statutory provision allows a plaintiff to assert statutory and common law claims for invasion of privacy in the same action without abridging the types of remedies available under the common law.See Almeida v. Amazon.com, Inc.,supra, 456 F.3d at 1325 ("The Florida legislature enacted section 540.08 in order to expand the remedies available under the common law right against misappropriation"); Loft v. Fuller, 408 So.2d 619, 622 (Fla. App. 1981) ("By enacting Section 540.08, the Florida Legislature has amplified the remedies available for . . . commercial exploitation of the property value of a person's" likeness). In sum, the plaintiff has failed to show that she is entitled to recover damages under her common law claim for misappropriation of her image because she has not
stated the basis for this claim, and an award for harm to her reputation would constitute an impermissible double recovery.
E. Defamation by Implication
The plaintiff has also asserted a claim for "defamation by implication," which is a tort recognized under Florida law. See Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098, 1108 (Fla. 2008). "Defamation by implication arises, not from what is stated, but from what is implied when a defendant (1) juxtaposes a series of facts so as to imply a defamatory connection between them, or (2) creates a defamatory implication by omitting facts, such that he may be held responsible for the defamatory implication." Id. at 1106. The defendants' unauthorized use of the plaintiff's self-portrait on the packaging of a pornographic movie, which improperly suggests the plaintiff's participation in, or her willing association with, the pornographic industry, constitutes defamation by implication. See id.
The plaintiff alleges that $100,000 is "fair compensation for the humiliation she suffered as a result of having her photograph used in connection with the `Body Magic' pornographic movie and related marketing materials" (Doc. 121, p. 12). She also seeks $25,000 punitive damages (id., p. 13).
1. Compensatory damages
A plaintiff who prevails on a defamation claim may recover damages for "shame, humiliation, mental anguish, and hurt feelings experienced in the past or to be experienced in the future." Florida Standard Jury Instructions, Instruction MI 4.4., p. 1; see also Restatement Second of Torts, § 621, p. 320, comment b ("actual injury" includes "personal humiliation, and mental anguish and suffering").
At trial, the plaintiff testified in a credible and convincing manner that the unauthorized use of her photograph on the packaging of Body Magic was humiliating and distressing, and caused her to become depressed. Thus, the plaintiff testified credibly that she was "shocked, disgusted, and ashamed" when she saw the image that she took of herself at age 14, innocently playing dress-up, being used in association with a pornographic movie. Further, she testified with emotion, but without histrionics, to the stress and problems it caused with her family and friends. She also worried that being associated with a pornographic movie would harm her career as a fashion photographer. Moreover, the plaintiff's humiliation and distress was compounded by Burge's offensive and belittling e-mail responses to the plaintiff, in which he demeaned her talent and accused her of, among other things, attempting to scam him (Pl. Exs. 18, 20, 22). Consequently, the plaintiff gave up photography for several months, and she had trouble sleeping and eating.
The plaintiff's requested award of $100,000 is reasonable and adequate compensation for this harm. Compare Fleming v.Gadsden County Times, 1988 WL 500044 (Fla. Cir.Ct. 1988) (jury award of $865,000 in compensatory damages for a newspaper article linking the plaintiff and his company to a federal criminal investigation); Destefano v.Adventist Health System Sunbelt, 973 So.2d 492 (Fla. App. 2007) (upholding a one-million dollar compensatory damage award for defamatory remarks that the plaintiff inappropriately kissed his mother and improperly laid with her on her hospital bed). Thus, the defamation caused the plaintiff personal and professional humiliation, and it was severe enough to harm her career, and impair the plaintiff's physical health and relationships with family and friends.
Accordingly, the plaintiff will be awarded $100,000 for the humiliation and mental anguish caused by the defendants' defamatory use of her self-portrait.
2. Punitive damages
The plaintiff also seeks an award of $25,000 in punitive damages for the defamatory use of her photograph (Doc. 121, p. 13). Punitive damages for defamation are compensable upon a showing that the defendants' "primary purpose" in engaging in the defamatory act "was to indulge ill will, hostility, and an intent to harm." Florida Standard Jury Instruction MI 4.4., pp. 3-4. However, as discussed in connection with the plaintiff's request for punitive damages under Fla. Stat. § 540.08, the evidence unquestionably does not support such finding because the defendants were unaware of the violation when they produced the infringing Body Magic packaging. See Florida Standard Jury Instruction MI 4.4., pp. 3-4. Therefore, the plaintiff's request for punitive damages is denied.
F. Conspiracy to Commit Defamation by Implication
The plaintiff has, in her most recent submission, requested damages of $125,000 for "Conspiracy to Commit Defamation by Implication" (see Doc. 121, p. 2). This appears to be an error, because the plaintiff affirmatively abandoned that claim in her supplemental memorandum regarding liability (Doc. 107, p. 29) ("Count VIII-Conspiracy to Commit Defamation by Implication. Plaintiff hereby abandons and drops the claim set forth in Count VIII of the Second Amended Complaint"). Therefore, to the extent that the plaintiff sought a separate award of damages for "Conspiracy to Commit Defamation by Implication," it is denied.
G. Intentional Infliction of Emotional Distress
The plaintiff's final claim is intentional infliction of emotional distress. The elements of this claim are: "(1) deliberate or reckless infliction of mental suffering; (2) outrageous conduct; (3) the conduct caused the emotional distress; and (4) the distress was severe." Thomas v. Hospital Bd. of Directors of Lee County, 2010 WL 1816251 at *8 (Fla. App. 2010). The Florida Supreme Court has repeatedly affirmed that, to sustain this claim, the conduct must be "so outrageous in character, and so extreme in degree" that it is considered "atrocious . . . and utterly intolerable in a civilized community." Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 278-79 (Fla. 1985). Thus, "it is not enough that the intent is tortious or criminal; it is not enough that the defendant intended to inflict emotional distress; and it is not enough if the conduct was characterized by malice or aggravation which would entitle the plaintiff to punitive damages for another tort." State Farm Mut. Auto Ins. Co. v. Novotny, 657 So.2d 1210, 1213 (Fla. App. 1995).
The defendants' actions unquestionably do not rise to this level of misconduct because the defendants were unaware that they were violating the plaintiff's rights when her photograph was selected for the Body Magic packaging. Nonetheless, the plaintiff argues that the defendants' conduct is sufficiently outrageous because the defendants allegedly "took what they had to know was a reasonably recent photograph . . . of an obviously young woman and used it as the cover art, face art and online marketing material for their pornographic movie" (Doc. 121, p. 14). The defendants' use of a picture of a "young woman" for the package of a pornographic movie does not, in itself, constitute outrageous conduct.
For this reason, the defendants' use of the plaintiff's photograph also does not satisfy the element of "deliberate or reckless infliction of mental suffering." Thomas v. Hospital Bd. of Directors of Lee County, supra.
Furthermore, to the extent the plaintiff insinuates that the defendants knew the photograph was of a minor girl when they selected it for the packaging of Body Magic, that assertion is not supported by any evidence. In this regard, the plaintiff cites to a January 29, 2007, e-mail to Burge, in which she tells him that the photograph is a self-portrait taken when she was 14 years old (see Doc. 121, p. 14); however, that e-mail was sent long after the plaintiff's photograph was reproduced on the packaging of the Body Magic DVD (see Pl. Exs. 17, 33, 34). Moreover, it is not apparent from looking at the picture that the female is a minor.
The plaintiff argues further the defendants' failure to obtain express consent from the plaintiff for the use of her photograph, or attempt to determine her identity, was outrageous (Doc. 121, p. 15). Under the circumstances of this case, these contentions do not amount to more than negligence.
Finally, the plaintiff makes the unpersuasive argument that defendant Burge's e-mail responses, in which he accuses the plaintiff of trying to "scam" him and blames the plaintiff for poor sales of the Body Magic movie, magnifies the defendants' misconduct and renders it outrageous (id.). Burge was indisputably insulting and rude in these e-mails. Further, the defendants' conduct, in its totality, was morally wrong and tortious. However, the misconduct still does not "go beyond all bounds of decency and . . . [cause] an average member of the community . . . to exclaim, `Outrageous.'" Metropolitan Life Ins. Co. v. McCarson, supra, 467 So.2d at 279; see, e.g., Williams v. Worldwide Flight SVCS., Inc., 877 So.2d 869, 870 (Fla. App. 2004) (racial epithets, forcing the plaintiff to work in dangerous conditions, and the creation of a false disciplinary record to justify the plaintiff's termination is "reprehensible, objectionable, and offensive" behavior, but is not "reasonably regarded as so extreme and outrageous" to state a claim for intentional infliction of emotional distress). The plaintiff, moreover, does not cite any apposite legal authority that this conduct is sufficiently outrageous to state a cognizable claim for intentional infliction of emotional distress. Therefore, the plaintiff failed to prove her claim of intentional infliction of emotional distress.
It is, therefore, upon consideration:
ORDERED:
That the plaintiff's Motion for Default Final Judgment of Liability against Televised Visual X-Ography, Inc., and Robert Augustus Burge (Doc. 99) is hereby GRANTED to the extent that final judgment will be entered for the plaintiff Lara Jade Coton, and against defendants Televised Visual X-Ography, Inc., and Robert Augustus Burge, on the plaintiff's claims of direct copyright infringement, defamation by implication, and misappropriation of image pursuant to Fla. Stat. § 540.08, in the amount of $129,173.20, with interest thereon in accordance with 28 U.S.C. 1961. The Clerk shall enter judgment accordingly and CLOSE this case.