United States District Court, S.D. New York. TOP RANK, INC., Plaintiff, v. ALLERTON LOUNGE, INC. and Angel Cortes, d/b/a Bottom Line, et al., Defendants

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United States District Court,S.D. New York.

TOP RANK, INC., Plaintiff,v.

ALLERTON LOUNGE, INC. and Angel Cortes, d/b/a Bottom Line, et al., Defendants.

No. 96 Civ. 7864(SS).

March 25, 1998.

ORDER

SOTOMAYOR, J.

*1 By Report and Recommendation dated March 3, 1998 (“Report”),

Magistrate Judge Ronald L. Ellis recommended statutory award damagesin this action against the defaulting defendants in the followingamounts:

§ 605Willful Increase§ 504Willful IncreaseAtty's FeesTota l

Crisci$1000$1000$1000$1000$2058.85$6058.85

Farrier $1000$1000$750$1000$2163.24$5913.24

El Vaq.$1500



$1000$1500$1000$1902.80$6902.80

Lopez$2000$1000$2000$1000$1926.80$7926.80

98 3rd$3750

$1000$3750$1000$1969.6811469.68

Martinez$2500$1000$2500$1000$2056.20$9056.20

Plaintiff has filed timely objections to the Report asking the Courtto reconsider the Magistrate Judge's statutory damage recommendationarguing that the amount recommended is “too lenient to create anappropriate deterrent” for the defendants' wilful copyrightinfringement and default in this action. In making his recommendation,the Magistrate Judge reasoned that:

The violation in this case was not particularly egregious nor is thereevidence of a pattern and practice. An award at the lower end of thespectrum seems warranted. The court, therefore, has attempted to fixan amount which corresponds to the pecuniary loss to the plaintiff.



Report at 7.

The Court agrees with the Magistrate Judge that the facts of this case

do not warrant a high end statutory damage award. A wilfulinfringement, which the Magistrate Judge found, combined with a wilfuldefault, however, warrant an award greater and more significant thanone which corresponds so closely to an estimated loss to the plaintiff. The Court agrees with the defendants that statutory damagesmust be sufficient enough to deter future infringements and should not be calibrated to favor a defendant by merely awarding minimumestimated losses to a plaintiff. The Court finds, accordingly, therecommended awards in the Report to be inadequate. The Court alsofinds that the amounts awarded in Top Rank, Inc. v. Fiesta RestaurantSystems, Inc., et al., No. 96-4585(JGK),-$5000 for violation of § 553,

$10,000 for violation of § 605, and $5,000 or violation of 17 U.S.C. §101 et seq.-on facts nearly identical to this case, to be a better measure of a low end award that adequately deters the wilful butnon-pattern conduct at issue in this case. Accordingly, after a denovo review and for the reasons set forth in the Report and herein,the Court adopts the Report except raises the amount awarded asfollows:

§ 605Willful Increase§ 504Willful IncreaseAtty's FeesTota l

Crisci$5000$5000$5000$5000$2058.85$22,059

Farrier $5000$5000$5000$5000$2163.24



$22,163

El Vaq.$5000$5000

$5000$5000$1902.80$21,903

Lopez$5000$5000$5000$5000$1926.80

$21,927

98 3rd$7500$7500$7500$7500$1969.68$31,970

Martinez$5000$5000$5000$5000$2056.20$22,056

*2 The Clerk of the Court is directed to enter judgment in accordancewith this Order.

SO ORDERED.

S.D.N.Y.,1998.Top Rank, Inc. v. Allerton Lounge, Inc. Not Reported in F.Supp., 1998 WL 35152791 (S.D.N.Y.)



Motions, Pleadings and Filings (Back to top)

• 1:96cv07864 (Docket) (Oct. 17, 1996)

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United States District Court, S.D. New York. TOP RANK, INC., Plaintiff, v. ALLERTON LOUNGE, INC. and Angel Cortes, d/b/a Bottom Line, et al., Defendants