by Dennis Crouch
Artist Christopher Boffoli is known for his detailed photographs contrasting small people with large food. In 2015, Atemis LLC allegedly posted a couple of images of Boffoli works on Facebook and mis-attributed the works to other artists in the same small-people-large-food genre. Atemis has a food-ordering app called “Let Eat Go” and the FB posts were in conjunction a FB page for the app.
Two years later – December 2017, Boffoli discovered the use of his images and then sued for copyright infringement in 2018. I’ll note that naming-the-wrong-artist itself is not copyright infringement, but may have triggered Boffoli enough to sue.
Atemis did not show up to court and so the clerk awarded default under FRCP 55(a).
Entering a Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default.
R.55(a). After a bit of back-and-forth with the Judge, the court has now also awarded Default Judgment under R. 55(b) for $15,000.
When the complaint asks for a “sum certain,” then the court clerk will simply enter that amount as the default judgment. R. 55(b)(1). Here, the plaintiff asked for $150,000 as a statutory damages for willful infringement. However, the district court implicitly ruled that 55(b)(1) doesn’t apply — perhaps since the copyright act expressly puts the calculation of statutory damages in the hands of the judge.
[C]opyright owner may elect … statutory damages … in a sum of not less than $750 or more than $30,000 as the court considers just. . . . In a case where the copyright owner 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 $150,000.
Here, the court first ruled that the evidence submitted in its motion for default judgment was not sufficient to prove willful infringement. The court then found that $15,000 was the “just” amount.
Atemis may still escape judgment on personal jurisdiction. It may turn-out that the W.D. Washington court has no personal jurisdiction over the Delaware company. In that case, the default judgment would be void under R. 60(b)(4).
Boffoli has been a frequent copyright litigant — having filed more than a dozen additional infringement suits over the past decade.
This reads like the post was written by someone else, not Dennis. Also, why note that “Boffoli has been a frequent copyright litigant”? Why not state that “Buffoli’s works have been frequently infringed and he’s had to file suit to protect his rights”??
The anti-patentists (even though this is not in regards to patents) would claim that such a “spin” (notwithstanding any aopologies for “inadvertent snark” from the editor) would improperly reflect some type of “maximalist” view.
On the other hand, perhaps this simply reflects the need as Director Iancu has noted to change the tone of conversations about intellectual property protection.
On a related note, some have wondered why I bother to “sm@ck” Malcolm around for his nigh constant propaganda. I posit that not doing so may lead to his style of propaganda taking root and taking root even in people that may not recognize that such is happening (in addition to those that actively seek out to feed their affirmation biases that somehow patents (and other intellectual property) — and the enforcement of related rights — are “bad.”
“…Massacre”?? I’m confused. The art work does not appear to me to show violence.
I know of a fruitarianist that is absolutely appalled at the massacre of plants that happened in order to create the linguine…
PS: The two copyrighted works in question, from my Big Appetites series, are entitled ‘Cone Camping’ and ‘Linguine Car Wash.’ I’m not sure where you got Massacre.
Mr. Crouch: What isn’t obvious from court filings is that I spent a great deal of time and effort attempting to communicate with this company about their infringement of my work, as well as the brand confusion they caused by mis-identifying my photographs as that of other artists working in the same genre (whose copyrights they also presumably infringed). But they chose to ignore me, suggesting that they feel entitled to exploit copyrighted work. They squandered multiple opportunities to settle this matter out of court. Hence, they left me little choice but to turn to the court to seek relief. Most other cases I have pursued have been against multi-billion dollar companies who have failed to comply with their obligations under the DMCA.
As an independent visual artist I feel strongly about defending my copyrights from commercial entities that take my images – without permission, license or attribution – and use them as free content to drive traffic and attention to their own brands. Visual art has value. Images are the source of my livelihood and the result of a craft that has taken me decades to perfect, requiring a great deal of time and also much expensive equipment. I’m at a loss to understand why I should sit by and watch strangers profit with the help of my work.
Though I would much rather devote my time to creative ventures, as opposed to dealing with these matters, the rampant, willful infringement of my visual art unfortunately leaves me no choice but to respond to these situations as time and resources allow. In addition to advocating for myself and my business, it is also my hope that progress I make will pay dividends in some manner for other visual artists who make a living from creating images.
Thank you for this comment!
Rereading my post, it appears snarkier than I had planned. I enjoy your artwork and the way that it bends my perception.
One unfortunate aspect of the case is that I expect that $15,000 is not sufficient to cover your costs in the matter.
Actually, that’s not quite the case. Even though this action was a bit more iterative than others (due to a somewhat pedantic law clerk) the actual costs were a fraction of the judgment amount. And there is always the option to petition the court to recover legal fees, which we didn’t request here.
The bigger challenge may actually be collecting the judgment from what is essentially a Delaware-based shell company run by a foreign national who does not seem to show much respect for the authority of US courts.
With that said, past coverage of my copyright actions in general are too focused on money: costs, maximum damages, judgments, etc. Too many stories obsess about the “millions” in statutory damages that I’m seeking when that is never my goal. This is more a matter of principle for me. I’m fortunate to be a commercially successful photographer: selling work in fine art galleries, shooting covers for publications like the NY Times and Washington Post, and doing advertising work for some of the biggest agencies in the world. So I can afford to push back against some companies that exploit my work and then refuse to take responsibility when caught.
Thank you for this perspective!
Congrats and more power to Mr. Boffoli. The work is clearly original, and there seems to be little doubt that the infringement was knowing, at least at some point. There are copyright trolls out there, just as there are patent trolls, but Mr. Boffoli does not appear to be one of them.
Comments are closed.