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Justice v. Ice King Enters. LLC

United States District Court, N.D. California

January 22, 2015

RAYVEN JUSTICE, Plaintiff(s),
v.
ICE KING ENTERPRISES LLC, Defendant(s)

For Rayven Justice, Plaintiff: Habib M Bentaleb, LEAD ATTORNEY, Carlton John Willey, Willey & Bentaleb LLP, San Francisco, CA.

REQUEST FOR REASSIGNMENT; REPORT AND RECOMMENDATION RE PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT [DOCKET No. 32]

DONNA M. RYU, United States Magistrate Judge.

Before the court is a motion for default judgment filed by Plaintiff Rayven Justice against Defendant Ice King Enterprises LLC d/b/a Ice King Music LLC. [Docket No. 32.] The court held a hearing on the motion on January 22, 2015. Defendant did not appear. Defendant has not filed a consent to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). Therefore, the court requests that this case be reassigned to a District Judge and issues this recommendation that the motion be granted in part and denied in part.

I. BACKGROUND

A. Factual Allegations[1]

1. Parties

Plaintiff is a hip-hop artist who resides in Oakland, California. Defendant is a California limited liability company that seeks to secure record distribution agreements with record labels for the musicians with whom it contracts. Compl. [Docket No. 1] at ¶ ¶ 6-7. Defendant's principal place of business is Richmond, California. Compl. at ¶ 3.

2. The Agreement

On October 31, 2011, Plaintiff and Defendant entered into a recording agreement (the " Agreement") under which Plaintiff agreed to provide Defendant with recorded music performances, be available for personal auditions and do other things " reasonably related to securing a Distribution Agreement, " and in return, Defendant would attempt to secure a distribution agreement for Plaintiff with an established music distributor. Id. at ¶ 8, Ex. A (Agreement) at ¶ 2(a). The Agreement describes how profits were to be shared and the responsibilities of each party.

The Agreement grants Plaintiff the right to terminate the agreement: " In the event [Defendant] has failed to enter into a Distribution Agreement furnishing the services of Artist under the Agreement within twenty-four (24) months from execution of this Agreement, [Plaintiff] may terminate the Agreement by written notice to [Defendant]." Id. at ¶ ¶ 9-10; Agreement at ¶ 2(a).

The Agreement states that Defendant " guarantees to compensate [Plaintiff] for his exclusive services hereunder at the rate of not less than Nine Thousand Dollars ($9, 000.00) for the first fiscal year of this Agreement or such other sum as may be required during subsequent Contract Periods to satisfy the provisions relating to injunctive relief under Section 3423 of the California Civil Code and Section 526 of the California Code of Civil Procedure." Compl. at ¶ 11; Agreement at ¶ 12.

3. Performance Under Agreement and Termination

Between October 31, 2011 and October 31, 2013, Plaintiff provided Defendant with approximately fifty master recordings, which Plaintiff alleges was " more than enough to fulfill Plaintiff's obligations under the Agreement." Compl. at ¶ 12. Plaintiff also provided Defendant with numerous public appearances and performances in order to assist in securing a distribution agreement.

On or about October 31, 2013, Defendant attempted to negotiate with a record label, Entertainment One U.S., LP (" eOne Distribution"), for a distribution deal for Plaintiff. On October 31, 2013, counsel for Defendant sent an " extension letter" to Plaintiff, which stated, " Please allow this letter serve as notice that [Defendant] has entered a Distribution Agreement (as the term is commonly understood in the music industry) with eOne Entertainment for your services as a recording artist and songwriter. Accordingly, the Term of this Agreement shall remain in full force and effect." Compl. at ¶ 15, Ex. B (Letter from Tabetha Plummer to Rayven Justice dated October 13, 2013). Despite the claims made in the letter, however, Defendant was unable to secure a deal with eOne Distribution. Therefore, Defendant did not secure a distribution agreement for Plaintiff by October 31, 2013. Compl. at ¶ ¶ 15-16.

On December 10, 2013, counsel for Plaintiff sent a letter to counsel for Defendant to notify Defendant of the termination of the agreement. Compl. at ¶ ¶ 17-18, Ex. C (Letter from Heather Beverly to Tabetha Plummer dated December 10, 2013). The letter stated:

This letter is being sent pursuant to paragraphs 2(A) and 11 of the Agreement and shall serve as notice of termination of the Agreement for the Company's failure to enter into a Distribution Agreement (as defined in the Agreement) within the required time frame . . . . Pursuant to the terms of the Agreement, the Company was required to enter a Distribution Agreement by October 31, 2013. As of the date of this notice, no Distribution Agreement furnishing Rayven's artistic services has been entered. Consequently, this shall serve as Rayven's formal termination of the Agreement and any and all grants of rights and permissions therein.

Compl. at Ex. C.

On December 11, 2013, Defendant sent Plaintiff a letter contending that the Agreement remained in effect between the parties because Defendant had " entered into a Distribution Agreement (as the term is customary [sic] understood in the music industry) with iTunes and TuneCore for the right to distribute records derived from master recordings recorded pursuant to the terms of the Recording Agreement. As such, the Recording Agreement remains in full force and effect . . . . I strongly urge your client to govern himself accordingly." Compl. at Ex. C.

On December 12, 2013, Plaintiff responded to Defendant's letter and reiterated that the " Agreement is terminated." Plaintiff also expressed a desire " to part on amicable terms, " and proposed a " courtesy" reimbursement to Defendant for Defendant's expenses. Compl. at ¶ 19, Ex. E (Letter dated December 12, 2013, with redactions).

On December 17, 2013, Defendant acknowledged receipt of Plaintiff's letters from December 10 and 12 and rejected Plaintiff's offer, stating that Defendant " firmly maintains that the Agreement remains in full force and effect." Compl. at ¶ 21, Ex. F.

On December 20, 2013, Plaintiff sent a letter to Defendant repeating Plaintiff's position that Defendant had failed to meet its obligations under the Agreement and that the Agreement was validly terminated. Defendant never responded to this letter, and Plaintiff sent a letter dated January 31, 2014, which repeated the same positions as Plaintiff's previous letters. Compl. at ¶ ¶ 22-23, Exs. G, H. The January 31, 2014 letter also stated, " If [Defendant] would like for [Plaintiff] to consider renewing the contractual relationship with [Defendant], kindly provide . . . information [about the proposed contract terms] for [Plaintiff's] review and consideration." Compl. at Ex. H. On February 18, 2014, Defendant's counsel replied by email with proposed contract terms. Compl. at Ex. I. The Complaint does not allege that Plaintiff and Defendant actually entered into this proposed agreement.

To date, Defendant has failed to provide any distribution agreement to Plaintiff, and has failed to provide the required compensation under the Agreement. Compl. at ¶ 33. Plaintiff alleges that Defendant's position is that Plaintiff " remains obligated under the Agreement." Compl. at ¶ 50.

4. Unauthorized Use of Plaintiff's Work

After Plaintiff sent the notice of termination to Defendant, Plaintiff continued to record music on his own while seeking to secure a distribution deal. Plaintiff decided to release some of his new songs on a popular mix-tape album with a local disc jockey named DJ Carisma. DJ Carisma created the album and placed it on the music website hotnewhiphop.com. Compl. at ¶ ¶ 26-27.

On or about February 14, 2014, Plaintiff learned that Defendant released a music album of Plaintiff's work on iTunes without Plaintiff's permission. The album was entitled " I Have A Dream." The album included Plaintiff's songs from the DJ Carisma mix-tape, which Plaintiff alleges Defendant acquired by " unlawfully remov[ing] Plaintiff's songs (created after the notice of termination) from the mix-tape and placed them on the [I Have A Dream] album for sale." Compl. at ¶ 28.

Plaintiff currently has pending copyright applications with the U.S. Copyright office for the following songs (collectively, " Songs"): (1) " Pull Up" (No. 1-1363143505); (2) " My Yang" (No. 1-1363143429); (3) " I See You" (No. 1-1363143343); (4) " You Exed" (No. 1-1362848917); (5) " On Momas" (No. 1-1358413328); (6) " S*it Got Real" (No. 1-1358380273); (7) " Slide Thru" (No. 1-1358380138); and (8) " Might As Well" (No. 1-1358322156).[2] All of the Songs were placed on the " I Have A Dream" album without Plaintiff's authorization. Compl. at ¶ 30.

On March 28, 2014 Plaintiff informed Defendant that the release of the " I Have A Dream" album was unauthorized, and demanded that Defendant remove the album from the iTunes catalogue. Comp. at ¶ 29, Ex. J. Defendant did not respond to this demand, and continues to sell the album on iTunes. Compl. at ¶ 31.

5. Causes of Action

Plaintiff filed this lawsuit on April 17, 2014. The Complaint brings four causes of action against Defendant: (1) copyright infringement, (2) breach of contract, (3) declaratory judgment, and (4) violation of California's Unfair Competition Law (" UCL"), California Business and Professions Code § 17200.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 55(b)(2) permits a court to enter a final judgment following a defendant's default. Fed.R.Civ.P. 55(b)(2). Whether to enter a judgment lies within the court's discretion. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986); Shanghai Automation Instrument Co., Ltd. v. Kuei, 194 F.Supp.2d 995, 999 (N.D. Cal. 2001) (citations omitted).

Before assessing the merits of a default judgment, a court must confirm it has subject matter and personal jurisdiction, as well as ensure adequacy of service on the defendant. See In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). If the court finds these requirements satisfied, it turns to the following factors (" the Eitel factors") to determine whether it should grant a default judgment:

(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action[, ] (5) the possibility of a dispute concerning material facts[, ] (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decision on the merits.

Eitel, 782 F.2d at 1471-72 (citation omitted).

III. DISCUSSION

A. Default Judgment

1. Subject Matter and Personal Jurisdiction

This court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1331 because Plaintiff has alleged a cause of action arising under federal copyright law, 17 U.S.C. § 101 et seq. The court exercises personal jurisdiction over Defendant because it is a limited liability company formed under the laws of California, with its principal place of business in Richmond, California. Compl. at ¶ 3.

2. Service of Process

After filing the Complaint, Plaintiff attempted to serve Defendant on numerous occasions at different addresses and via different means, all to no avail. See Order [Docket No. 22] at 2-3 (describing Plaintiff's nine attempts to serve three addresses for Defendant and its registered agent Amir Rashad, and the mailing of copies of the Complaint and summons to one of these addresses, as well as Plaintiff's attempts to contact Defendant by sending email to its former counsel). Because these attempts to serve were unsuccessful, Plaintiff moved the court for an order permitting service upon Defendant by delivery of process to the California Secretary of State. [Docket No. 20.] On September 18, 2014, the court held that " Plaintiff has been diligent in his attempts to serve Defendant" and concluded " that service upon Defendant may be made through service upon the California Secretary of State." Order at 4.

Subsequently, Plaintiff served the Complaint and summons on Defendant by delivering those documents to the California Secretary of State. See Proof of Service [Docket No. 24]. The court has reviewed the proof of service and the record and finds that the summons and Complaint were properly served on Defendant.

3. Possibility of Prejudice to the Plaintiff

Plaintiff argues that Defendant has not participated in this litigation despite Plaintiff's numerous efforts to serve Defendant with process, and that Defendant has been unresponsive to Plaintiff's attempts to resolve the parties' disputes without judicial intervention. Meanwhile, Plaintiff notes that " Defendant's actions have created a difficult barrier to Plaintiff's career and undeniably frustrated Plaintiff's attempts to earn a living." Motion at 11. The court therefore finds that Plaintiff will be prejudiced if default judgment is not granted, because he will likely be left without a remedy. See, e.g., Broadcast Music, Inc. v. Paden, No. 11-cv-2199-EJD, 2011 WL 6217414, at *3 (N.D. Cal. Dec. 14, 2011) (" [D]enial of the motion would allow Defendants' alleged infringing conduct to continue undeterred and leave Plaintiff without any recourse or way to recover lost profits. Furthermore denial of the injunctive relief requested will leave Plaintiffs with no means of preventing Defendants from infringing Plaintiffs' [copyrights] in the future . . . ."). This factor thus weighs in favor of default judgment.

4. Merits of Substantive Claims and Sufficiency of Complaint

The second and third Eitel factors require the court to consider whether Plaintiff has stated claims upon which he can recover. Plaintiff seeks default judgment with respect to his copyright infringement, breach of contract, and declaratory judgment causes of action, [3] so the court considers each in turn.

a. Copyright Infringement

Plaintiff alleges that Defendant is selling the Songs without Plaintiff's permission, in violation of Plaintiff's exclusive right to distribute and publish Plaintiff's work. Compl. at ¶ 34. Plaintiff also alleges that Defendant knew or should have known that the songs belonged to Plaintiff and that Defendant did not have permission to distribute Plaintiff's work, that Defendant knew or should have known that its conduct constituted copyright infringement in violation of 17 U.S.C. § 501, and that Defendant's conduct was willful. Compl. at ¶ ¶ 37-39.

To state a claim for copyright infringement, Plaintiff must establish ownership of a valid copyright and violation of at least one exclusive right granted to copyright holders under 17 U.S.C. § 106. See 17 U.S.C. § 501(a) (infringement occurs when alleged infringer engages in activity listed in § 106); Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991); A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001). It is the defendant's burden to prove that he has no knowledge or reason to believe that the work at issue in a copyright infringement action was protected, 17 U.S.C. § 504(c)(1)(2), and if a plaintiff produces a copyrighted work's certificate of registration, made before or within five years of the work's publication, then that certificate is prima facie evidence of copyright validity, 17 U.S.C. § 410(c).

Plaintiff alleges that he is the exclusive owner of the copyrights of the Songs, and has provided proof of the registered copyright certificates for the Songs. See Motion Ex. H. Plaintiff has also pleaded allegations which the court must accept as true regarding Defendant's unauthorized distribution of copies of Plaintiff's copyrighted Songs for sale on iTunes, which Plaintiff's counsel attests was ongoing at the time the Complaint was filed. See Compl. at ¶ 28; Bentaleb Decl. [Docket No. 32-12] at ¶ 6. The court thus finds that Plaintiff's allegations sufficiently state a claim for copyright infringement, and these factors weigh in favor of granting default judgment.

b. Breach of Contract

The provision of the Agreement entitled " Minimum Compensation" states:

Company [Defendant] guarantees to compensate Artist [Plaintiff] for his exclusive services hereunder at the rate of not less than Nine Thousand Dollars ($9, 000.00) for the first fiscal year of this Agreement or such other sum as may be required during subsequent Contract Periods to satisfy the provisions relating to injunctive relief under Section 3423 of the California Civil Code and Section 526 of the California Code of Civil Procedure."

Agreement at ¶ 12 (emphasis added). Plaintiff alleges that Defendant breached the Agreement by failing to provide him the minimum compensation he was owed.

" [T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff." Oasis W. Realty, LLC v. Goldman, 51 Cal.4th 811, 821, 124 Cal.Rptr.3d 256, 250 P.3d 1115 (2011). The first two elements are met, as Plaintiff alleges that there is a valid contract between the parties and that he satisfied his obligations under the Agreement. With respect to the third element, in the Complaint, Plaintiff alleged that the Minimum Compensation obligates Defendant to provide Plaintiff with minimum compensation of $9, 000 in the first fiscal year of the Agreement and $12, 000 during the second fiscal year. Compl. at ¶ 44. However, during the hearing, Plaintiff's counsel clarified that Plaintiff's interpretation of the Minimum Compensation provision had changed, such that Plaintiff's breach of contract claim is only based on Defendant's failure to pay Plaintiff $9, 000 in the first fiscal year of the Agreement.

The first half of the Minimum Compensation provision guarantees Plaintiff " not less than Nine Thousand Dollars ($9, 000.00) for the first fiscal year of this Agreement." Plaintiff has alleged, and the court must accept as true, that Plaintiff was not compensated at all for the first fiscal year of the Agreement. The second half of the Minimum Compensation provision--the portion beginning " or such other sum as may be required during subsequent Contract Periods" --is inapplicable until the occurrence of subsequent Contract Periods. Plaintiff's allegations show that this condition precedent never occurred, because Plaintiff terminated the Agreement at the end of the first Contract Period. Thus the second half of the Minimum Compensation provision is inapplicable to this case, and Plaintiff's allegations are sufficient to show that Defendant breached the Minimum Compensation provision insofar as it requires Defendant to provide $9, 000 to Plaintiff in the first fiscal year of the Agreement. Accordingly, the merits of the claim and sufficiency of the allegations factors weigh in favor of granting default judgment on Plaintiff's breach of contract claim.

c. Declaratory Judgment

Plaintiff seeks declaratory judgment that the Agreement has been effectively terminated. According to Plaintiff, Defendant has held out to third parties that Plaintiff is still under contract with Defendant, which impedes Plaintiff's business opportunities with others. Motion at 13.

The federal Declaratory Judgment Act provides that district courts " may declare the rights and other legal relations of any interested party seeking such declaration whether or not further relief is or could be sought." 28 U.S.C. § 2201(a). " 'The two principal criteria guiding the policy in favor of rendering declaratory judgments are (1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding. It follows that when neither of these results can be accomplished, the court should decline to render the declaration prayed.'" Round Hill Cellars v. Lolonis Winery, No. 11-cv-757-JSW (EDL), 2011 WL 6961333, at *3 (N.D. Cal. Dec. 9, 2011) report and recommendation adopted, 2012 WL 33247 (N.D. Cal. Jan. 6, 2012) (citing McGraw-- Edison Co. v. Preformed Line Products Co., 362 F.2d 339 (9th Cir. 1966)).

Here, there is an actual controversy as to whether the Agreement has been terminated, as Plaintiff alleges that Defendant refused to accept Plaintiff's notices of termination and continues to hold itself out to third parties as being in contract with Plaintiff. Plaintiff alleges that the uncertainty regarding the state of the Agreement has harmed him by impeding his business opportunities. Declaratory judgment is an appropriate remedy under these circumstances.

Plaintiff alleges that the Agreement permitted him to terminate the Agreement by written notice to Defendant if Defendant failed to secure a distribution agreement for Plaintiff within 24 months of the execution of the Agreement. Plaintiff further alleges that Defendant in fact failed to secure a distribution agreement within 24 months of the October 31, 2011 execution date of the Agreement, and that Plaintiff subsequently sent numerous written termination notices to Defendant. These allegations are sufficient for the court to determine that the Agreement between Plaintiff and Defendant has been terminated. This factor thus weighs in favor of granting default judgment on the declaratory judgment claim.

5. Possibility of Disputed Facts

In light of the above, the court considers the remainder of the Eitel analysis only for Plaintiff's claims for copyright infringement, breach of contract, and declaratory judgment.

The fifth Eitel factor requires the court to consider the possibility that materials facts will be disputed. Here, the material facts regarding Plaintiff's copyright claim do not appear reasonably likely to be subject to dispute. See, e.g., Microsoft Corp. v. Ricketts, No. 06-cv-6712-WHA, 2007 WL 1520965, at *3 (N.D. Cal. May 24, 2007) (granting default judgment against distributor of counterfeit Microsoft software and finding that " [c]opyright infringement . . . [is a] strict liability claim[] which limits the scope of factual disputes."); Sanrio Co. v. J.I.K. Accessories, No. 09-cv-440-EMC, 2012 WL 1366611, at *4 (N.D. Cal. Apr. 19, 2012) (granting default judgment against distributor of counterfeit Sanrio merchandise and finding that " that there is little possibility of a dispute, which supports default judgment. Plaintiff has produced the relevant copyrights and trademarks, and the counterfeit items clearly infringe upon the marks. Plaintiff has also produced evidence that Defendant Lee distributed the counterfeit goods at issue."). Plaintiff has produced the relevant copyrights and has adequately pleaded the circumstances under which Defendant used Plaintiff's copyrighted material without his authorization. This factor therefore weighs in favor of default judgment on the copyright claim.

With respect to Plaintiff's breach of contract claim and claim for declaratory judgment, Plaintiff has attached a copy of the Agreement to the Complaint and alleged in the Complaint how the provisions of the Agreement permitted Plaintiff to terminate the Agreement if Defendant did not secure a distribution agreement within 24 months. One possible dispute of material fact is whether Defendant's distribution of Plaintiff's music on iTunes and TuneCore constitutes " entering a Distribution Agreement" within the meaning of the Agreement. In a letter attached as an exhibit to the Complaint, Defendant appears to take the position that it had " entered into a Distribution Agreement (as the term is customary [sic] understood in the music industry) with iTunes and TuneCore." Compl. at Ex. C. There is no other information in the Complaint, besides this sentence in Exhibit C, that explains what Defendant did with Plaintiff's music on iTunes or TuneCore, or how Defendant's actions met its obligations under the Agreement. Plaintiff contends that this act does not meet Defendant's obligation under the Agreement to secure a distribution agreement for Plaintiff. Compl. at ¶ 33. Because the meaning of Defendant's action appears to be disputed, this factor weighs against default judgment on the breach of contract and declaratory judgment claims.

6. Sum of Money at Stake

The monetary recovery Plaintiff seeks is relatively small. Plaintiff is seeking the minimum statutory damages for the copyright violations of $750 for each of the Songs, or $6, 000. Plaintiff also seeks $9, 000 he claims is owed to him under the contract. Finally, Plaintiff does not seek attorneys' fees, but seeks $1, 585.94 in costs incurred by the filing fee and process server. The total amount of recovery Plaintiff seeks is therefore $16, 585.94. Motion at 15. This amount is low, especially when compared with the maximum amount Plaintiff could seek in statutory damages for the copyright infringements. See 17 U.S.C. § 504(a) (authorizing statutory damages of between $750 and $30, 000 per copyright infringed). This factor is therefore neutral or weighted in favor of default judgment.

7. Excusable Neglect

Under the sixth Eitel factor, the court must examine the possibility that Defendant's default is due to excusable neglect. Here, Plaintiff attempted several times to resolve the dispute with Defendant prior to filing this lawsuit, but was unable to do so. Plaintiff then filed this lawsuit and attempted to serve Defendant through various means, including by contacting his former counsel in order to determine Defendant's contact information. Defendant was properly served by delivery of the Complaint and summons on the California Secretary of State. However, to date, Defendant has not responded or otherwise appeared. Plaintiff also emailed a copy of this Motion to Defendant at an email address known to be used by Defendant at least until April 29, 2014. See Motion Ex. F (email sent to icekingmusicllc@gmail.com and Plaintiff's counsel dated April 29, 2014). There is no evidence that Defendant's failure to participate is due to anything other than informed inaction. See, e.g., Disney Enterprises, Inc. v. Vuong Tran, No. 12-5030 SC, 2013 WL 1832563, at *3 (N.D. Cal. May 1, 2013) (" Defendant was served with the Complaint and Summons in this action over five months ago and has yet to enter an appearance. Plaintiffs also served Defendant with their motion for entry of default judgment and its accompanying papers. In such circumstances, default cannot be attributed to excusable neglect.") (citation omitted). As such, this factor favors entry of default judgment.

7. Balance of Eitel Factors

Although federal policy favors a decision on the merits, the court finds that the balance of the Eitel factors weighs in favor of granting default judgment on Plaintiff's copyright infringement and declaratory judgment claims. The court's finding is further supported by Defendant's refusal to participate in this litigation. See Microsoft Corp., 2007 WL 1520965 at *3 (" Although federal policy does favor a decision on the merits, Rule 55(b) allows the entry of default judgment in situations, such as this, where the defendant has refused to litigate.").

B. Damages

To recover damages after securing a default judgment, a plaintiff must prove the relief it seeks through testimony or written affidavit. Bd. of Trs. of the Boilermaker Vacation Trust v. Skelly, Inc., 389 F.Supp.2d 1222, 1226 (N.D. Cal. 2005); see Pepsico, 238 F.Supp.2d at 1175 (citing Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987)). Here, Plaintiff seeks damages from several sources: statutory damages for copyright infringement, contract damages, and costs.

1. Damages for Copyright Infringement

Under the Copyright Act, an infringer is liable for either the plaintiff's actual damages or statutory damages. 17 U.S.C. § 504(a). A plaintiff seeking statutory damages may recover between $750 and $30, 000 for " all infringements involved in the action, with respect to any one work." 17 U.S.C. § 504(c). If a 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." 17 U.S.C. § 504(c)(2). If a plaintiff chooses to recover statutory damages, he need not prove actual damages. 17 U.S.C. § 504(c)(1). See also Columbia Pictures Indus., Inc. v. Krypton Broad. of Birmingham, Inc., 259 F.3d 1186, 1194 (9th Cir. 1997) (citation omitted). When awarding statutory damages, the Court has broad discretion within the range provided by statute. Id. " Statutory damages are intended to serve as a deterrent, but that does not justify . . . a windfall." Microsoft Corp., 2007 WL 1520965 at *4 (denying Plaintiff's request for $150, 000 in statutory damages per copyright infringed and awarding statutory damages of $1, 500 per copyright infringed instead).

Despite Plaintiff's allegation that Defendant's copyright infringement was willful, Plaintiff seeks only the minimum statutory damages of $750 for each of the eight copyrights infringed, for a total of $6, 000. The court finds this request reasonable, and recommends an award of $6, 000 in statutory damages for Defendant's copyright infringements.

2. Contract Damages

Plaintiff seeks $9, 000 for damages on his breach of contract claim. The court finds Plaintiff has adequately demonstrated that, under the Agreement, he was entitled to $9, 000 during the first fiscal year of the Agreement, and that Defendant has not paid this compensation. The court therefore recommends an award of $9, 000 in damages for Defendant's breach of contract.

3. Costs

In any civil action under the Copyright Act, " the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs." 17 U.S.C. § 505. Plaintiff seeks $1, 585.94 in costs: $400 for the filing fee, and $1, 185.94 in process server fees. See Bentaleb Decl. at ¶ 8. As these costs were reasonably incurred, the court recommends that the costs be awarded in full.

C. Permanent Injunction

Plaintiff also seeks a permanent injunction enjoining Defendant from reproducing, administering, selling, or distributing the Songs.

Under the Copyright Act, a court may enter an injunction against a defendant to prevent future copyright infringement. 17 U.S.C. § 502(a) (" Any court having jurisdiction of a civil action arising under this title may . . . grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright."). " Generally, a showing of copyright infringement liability and the threat of future violations is sufficient to warrant a permanent injunction" in the copyright context. Sega Enters. Ltd. v. MAPHIA, 948 F.Supp. 923, 940 (N.D.Cal. 1996) (citing MAI Systems Corp. v. Peak Computer Inc., 991 F.2d 511, 520 (9th Cir. 1993)). See also Disney Enterprises, 2013 WL 1832563 at *5 (granting permanent injunction where defendant willfully infringed plaintiffs' copyrights, failed to respond to lawsuit, and continues to violate plaintiffs' exclusive rights).

Here, Defendant's infringements of Plaintiff's copyrights and Defendant's continuing unauthorized use of Plaintiff's copyrighted material are sufficient to demonstrate the threat of future copyright violations. In such circumstances, the court is authorized to issue a permanent injunction to prevent or restrain further infringements. Therefore, Plaintiff is entitled to the permanent injunctive relief he requests.

IV. CONCLUSION

For the foregoing reasons, the court recommends that the District Court grant Plaintiff's motion for default judgment with respect to his copyright infringement, breach of contract, and declaratory judgment claims. The court recommends that a declaratory judgment be entered stating that the Agreement between Plaintiff and Defendant was effectively terminated on December 10, 2013. The court further recommends that the District Court award (1) statutory damages for the copyright infringement in the amount of $6, 000, (2) damages for the breach of contract claim in the amount of $9, 000, and (3) costs in the amount of $1, 585.94. Finally, the court recommends that Defendant be permanently enjoined from the unauthorized reproduction, administration, sale, or distribution of the copyrighted Songs.

Immediately upon receipt of this order, Plaintiffs shall serve a copy of this order on Defendant and file proof of service with the court. Any party may file objections to this report and recommendation with the District Judge within 14 days of being served with a copy. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(a); N.D. Civ. L.R. 72-2.

IT IS SO ORDERED.


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