UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-22344-CIV-ALTONAGA/Torres

MTN LABS LLC, 

Plaintiff,

v. 

JONI NIEMELA, 

Defendant.

_________________________/ 

ORDER

THIS CAUSE came before the Court upon Plaintiff, MTN Labs LLC’s Renewed Motion 

for Entry of Default Final Judgment Against Joni Niemela [ECF No. 18], filed on November 15, 

2022. Plaintiff asks the Court to declare (1) that Plaintiff has acceded to Defendant, Joni Niemela’s 

demand to remove an image from its website; and (2) that Plaintiff is not liable under United States 

Copyright law for any monetary damages to Defendant. (See Mot. ¶ 3).

A Clerk’s default was entered against Defendant on October 27, 2022 [ECF No. 12], 

because Defendant failed to answer or otherwise plead to the Complaint [ECF No. 1], despite 

having been served. The Court has carefully considered the Motion, the record in this case, and 

the applicable law, and it concludes that a default final judgment is justified. 

I. BACKGROUND

Plaintiff operates a website that sells various certification courses. (See Compl. ¶ 14). 

Defendant is a photographer. (See id. ¶ 2). Plaintiff’s website includes a blog section that 

inadvertently featured one of Defendant’s photos — a “benign photo of the woods” with no 

copyright mark. (Mot. ¶¶ 9–10). The photo merely served as background for the blog section; 

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Plaintiff did not use it to pitch any particular product. (See Compl. ¶¶ 15–16).

Plaintiff did not know Defendant had copyrighted the photo or that it could not use it on its 

website. (See Mot., Attach. 1, Alaimo Aff. [ECF No. 18-1] ¶ 8). That changed when Defendant’s 

counsel contacted Plaintiff via email. (See id. ¶ 10). Defendant’s counsel sent Plaintiff three 

emails, the first two of which went to Plaintiff’s spam folder. (See id.). Plaintiff received the third 

email, however, and immediately took the photo down. (See id. ¶¶ 10–11). Defendant nonetheless 

claims damages of over $4,000.00 against Plaintiff under copyright law. (See id. ¶ 13).

On July 27, 2022, Plaintiff filed a Complaint seeking declaratory relief. (See generally 

Compl.). It requests a judgment declaring that pursuant to the Berne Convention and U.S. 

copyright law, Plaintiff is not required to pay monetary damages to Defendant and had fair use of 

the photo. (See id.). Defendant failed to respond to the Complaint. Plaintiff now seeks final 

default judgment against Defendant. (See generally Mot.).

II. LEGAL STANDARD

“Rule 55 of the Federal Rules of Civil Procedure provides a two-step process for obtaining 

a default judgment.” Priestley v. Headminder, Inc., 647 F.3d 497, 504 (2d Cir. 2011). First, under 

Federal Rule 55(a), the plaintiff must obtain a clerk’s entry of default. See Fed. R. Civ. P. 55(a) 

(“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.”). Second, under Rule 55(b), the plaintiff may apply for entry of default judgment 

by the clerk “[i]f the plaintiff’s claim is for a sum certain,” or by the court “[i]n all other cases.” 

Fed. R. Civ. P. 55(b)(1), (2) (alterations added).

By failing to answer the Complaint, a defendant is deemed to have admitted the factual 

allegations in the Complaint. See Greyhound Exhibitgroup v. E.L.U.L. Realty Corp., 973 F.2d 

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155, 158 (2d Cir. 1992) (“[A] party’s default is deemed to constitute a concession of all well 

pleaded allegations of liability[.]” (alterations added)); Rolex Watch, U.S.A., Inc. v. Pharel, No. 

09-cv-4810, 2011 WL 1131401, at *2 (E.D.N.Y. Mar. 11, 2011), report and recommendation 

adopted, No. 09-cv-4810, 2011 WL 1130457 (E.D.N.Y. Mar. 28, 2011) (“In considering a motion 

for default judgment, the court will treat the well-pleaded factual allegations of the complaint as 

true, and the court will then analyze those facts for their sufficiency to state a claim.” (citation 

omitted)). Before entering default judgment, the Court must review the allegations to determine 

whether a plaintiff has stated a valid claim for relief. See Finkel v. Romanowicz, 577 F.3d 79, 84 

(2d Cir. 2009).

III. DISCUSSION

Plaintiff’s only claim in this litigation is for declaratory relief. (See generally Compl.). It 

asks the Court to declare that its use of the photo constituted “fair use.” (Id.). Applying U.S. 

copyright law, the Court concludes that the undisputed facts of this case admitted by virtue of 

Defendant’s default entitle Plaintiff to a final judgment.

The Copyright Act “provides that a copyright holder may not prevent another person from 

making a ‘fair use’ of a copyrighted work.” Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183 

(2021) (citation omitted). The fair use test, governed by 17 U.S.C. section 107, involves multiple 

factors that the Court must weigh to determine whether use of a copyrighted work was fair under 

the law. Section 107 provides:

In determining whether the use made of a work in any particular case is a fair use 

the factors to be considered include–

(1) the purpose and character of the use, including whether such use is of a 

commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

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(3) the amount and substantiality of the portion used in relation to the 

copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the 

copyrighted work.

17 U.S.C. §§ 107(1)–(4).

The first prong weighs strongly in favor of fair use. Here, the “inquiry into ‘the purpose 

and character’ of the use turns in large measure on whether the copying at issue was 

‘transformative,” i.e., whether it ‘adds something new, with a further purpose or different 

character.” Google LLC, 141 S. Ct. at 1188 (citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 

569, 579 (1994)). Plaintiff used the photo as a background image for a blog section of its website, 

not for financial gain. (See Compl. ¶¶ 15–16). The non-profit nature of this application is 

consistent with fair use. 

The second factor does not weigh strongly in either direction. The Court cannot determine 

whether the photo’s nature merits protection because Defendant has been unresponsive. The photo 

is not marked as copyrighted, nor did Defendant’s emails furnish evidence of copyright protection. 

(See id. ¶¶ 15, 19). It is thus unclear whether the photo has already been published, or whether 

this is an unpublished work. See Byrne v. Brit. Broad. Corp., 132 F. Supp. 2d 229, 235 (S.D.N.Y. 

2001) (explaining that previously released works, even if creative in nature, qualify for “far less 

protection against fair use” than unreleased works under the second factor (citation and quotation 

marks omitted)). Accordingly, the Court weighs the second factor neutrally.

The third factor concerns “the amount and substantiality of the portion used in relation to 

the copyrighted work as a whole[.]” 17 U.S.C. § 107(3) (alteration added). Here, the entire photo 

was used as a background image, not just a portion of it. (See Compl. ¶ 16). It would not have 

been feasible to use only a portion as background. Where it is necessary to copy an entire image 

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because using a fraction of it would be unfeasible, courts find that the third factor does not weigh 

strongly in either direction. See Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 

613 (2d Cir. 2006) (“At the same time, however, courts have concluded that such copying does 

not necessarily weigh against fair use because copying the entirety of a work is sometimes 

necessary to make a fair use of the image.” (citations omitted)). So, too, here.

The final factor concerns “the effect of the use upon the potential market for or value of 

the copyrighted work.” 17 U.S.C. § 107(4). Plaintiff’s use of the photo did not have a strong 

effect because it was removed from the website “immediately” once Plaintiff received notice. 

(Compl. ¶ 18). Defendant has made no showing of diminished value of the photo due to Plaintiff’s 

use, and the Court cannot identify any evidence that the value of the photo is diminished.

Accordingly, this factor weighs in favor of fair use.

Taken together, the four section 107 factors militate in Plaintiff’s favor, and Plaintiff is 

thus entitled to entry of a default judgment. The Court concludes that Plaintiff’s use of the photo 

was legal under 17 U.S.C. section 107 and that Plaintiff is not liable to Defendant for damages. 

Accordingly, it is

ORDERED AND ADJUDGED as follows:

1. The Renewed Motion for Entry of Default Final Judgment Against Joni Niemela 

[ECF No. 18] is GRANTED. 

2. Declaratory Judgment is entered in this matter to declare that pursuant to the Berne 

Convention and U.S. Copyright law, Plaintiff is not required to pay monetary 

damages to Defendant and had “fair use” of the photo.

3. Monetary damages will not be awarded. 

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DONE AND ORDERED in Miami, Florida, this 1st day of December, 2022. 

________________________________________

CECILIA M. ALTONAGA

CHIEF UNITED STATES DISTRICT JUDGE

cc: counsel of record

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