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Disney Enterprises, Inc., et al v. Bouncing 4 Fun

September 9, 2011

DISNEY ENTERPRISES, INC., ET AL., PLAINTIFFS,
v.
BOUNCING 4 FUN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS & RECOMMENDATIONS

Plaintiffs' motion for entry of default judgment against defendants Bouncing 4 Fun ("Bouncing") and Victoria Millhouse a/k/a Victoria Bauske a/k/a/ Victoria Vasquez ("Millhouse"), filed March 14, 2011, was submitted on the record. Local Rule 230(h). Upon review of the motion and the supporting documents, and good cause appearing, the court issues the following findings and recommendations.

BACKGROUND

On November 17, 2010, plaintiffs filed the underlying complaint in this action against defendants Bouncing and Millhouse, alleging defendants were operating a business that was actively selling and renting unlicensed and counterfeit moonwalks*fn1 , which incorporated the unauthorized likenesses of plaintiffs' copyrighted characters and logos. The summons and complaint were personally served on defendants Bouncing and Millhouse on November 29, 2010. Fed. R. Civ. P. 4(e)(2). Pacific Atlantic Trading Co. v. M/V Main Express, 758 F.2d 1325, 1331 (9th Cir. 1985) (default judgment void without personal jurisdiction). Defendants have failed to file an answer or otherwise appear in this action. On January 18, 2011, the clerk entered default against defendants Bouncing and Millhouse.

Notice of entry of default and the instant motion for default judgment and supporting papers were served by mail on defendants at their last known address. Defendants filed no opposition to the motion for entry of default judgment. Plaintiffs seek an entry of default judgment in the amount of $475,000.00 in statutory damages in favor of Disney, $75,000.00 in statutory damages in favor of DC Comics, $25,000.00 in statutory damages in favor of Hanna-Barbera, $25,000.00 in statutory damages in favor of Sanrio, interest pursuant to 28 U.S.C. § 1961(a), and a permanent injunction.

DISCUSSION

Entry of default effects an admission of all well-pleaded allegations of the complaint by the defaulted party. Geddes v. United Financial Group, 559 F.2d 557 (9th Cir. 1977). The court finds the well pleaded allegations of the complaint state a claim for which relief can be granted. Anderson v. Air West, 542 F.2d 1090, 1093 (9th Cir. 1976).

To prevail on a claim for copyright infringement, plaintiff must establish ownership of a valid copyright and unauthorized copying of original elements of the work by the defendant. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). Plaintiffs have alleged ownership of valid copyright registrations in characters and logos that defendants allegedly unlawfully incorporated into their merchandise, such as moonwalks, which they sold, rented, distributed or manufactured. See Complaint ("Compl."), at ¶ 1. The complaint is sufficiently pled and states a claim for copyright infringement.*fn2

Plaintiffs need not prove actual damages to recover the statutory damages they seek. Columbia Pictures Television, Inc. v. Krypton Broad. of Birmingham, Inc., 259 F.3d 1186, 1194 (9th Cir. 1997). Plaintiffs seek statutory damages as authorized by 17 U.S.C. § 504(c), in the total amount of $600,000.00. Compl., at ¶¶ 12-19, p. 21; Motion for Entry of Default Judgment ("Motion"), at 17. The court notes that defendants did not bother to respond to this action in any way, and thereby forfeited any argument they may have had to contest the amount of damages. The court deems defaulting defendants, by their failure to appear or defend this action, to have waived any objections to the statutory source of the damages prayed for in the instant motion. The memorandum of points and authorities and affidavits filed in support of the motion for entry of default judgment supports the finding that plaintiffs are entitled to the relief requested, but the total amount will be reduced. See infra. There are no policy considerations which preclude the entry of default judgment of the type requested. See Eitel v. McCool, 782 F.2d 1470, 1471-1472 (9th Cir. 1986).

Remedies

Plaintiffs seek statutory damages in the amount of $600,000.00, with $475,000.00 to be awarded to Disney, $75,000.00 to be awarded to DC Comics, $25,000.00 to be awarded to Hanna-Barbera, $25,000.00 to be awarded Sanrio, interest pursuant to 28 U.S.C. § 1961(a), and a permanent injunction. Plaintiffs do not seek attorneys' fees.

A. Injunction

Plaintiffs seek an injunction in the following form to enjoin defendant's wrongful conduct:

3) The Defendants and their agents, servants, employees and all persons in active concert and participation with them who receive actual notice of the ...


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