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PLAINTIFF’S MOTION FOR ENTRY OF DEFAULT FINAL JUDGMENT AND

MEMORANDUM OF LAW

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

James Messerschmidt,

 Plaintiff, Case No: 0:22-cv-61614-AHS 

-againstGazeta Brazilian News Corporation,

Defendant.

___________________________________/

PLAINTIFF’S MOTION FOR ENTRY OF DEFAULT FINAL JUDGMENT

AND MEMORANDUM OF LAW

Plaintiff, James Messerschmidt (“Plaintiff”) (hereinafter referred to as 

“Plaintiff”) by and through his undersigned counsel and pursuant to Federal Rule of 

Civil Procedure 55(b)(2) and Local Rule 7.1(d) hereby moves this court for Entry of 

a Default Final Judgment against Defendant, Gazeta Brazilian News Corporation

(“Gazeta” or “Defendant”), upon the Complaint hereto filed and served upon the 

Defendant, and in support thereof states as follows:

INTRODUCTION

1. On August 30, 2022, Plaintiff commenced this copyright infringement 

action against Defendant for unlawfully posting Plaintiff’s copyrighted photograph 

on its website, www.gazetanews.com, in violation of 17 U.S.C. §501 et. seq. [See 

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PLAINTIFF’S MOTION FOR ENTRY OF DEFAULT FINAL JUDGMENT AND

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Complaint Dkt. No. 1].

2. This Court has subject-matter jurisdiction over claims for copyright 

infringement pursuant to 28 U.S.C. §1338, as well as federal question jurisdiction 

under 28 U.S.C. §1331. [Dkt. No. 1, ¶7].

3. Plaintiff creates photographic images and owns the rights to these 

images which Plaintiff licenses for various uses including online and print 

publications. [Dkt. No. 1, ¶2].

4. Defendant is the registered owner and operator of the website

www.gazetanews.com (the “Website”), and is responsible for all of its content. [See 

Dkt. No. 1, ¶3].

5. The Website is a popular and lucrative commercial enterprise. 

6. The Website is monetized in that it contains paid advertisements and, 

on information and belief, Defendant profits from these activities. 

7. On August 15, 2018, Plaintiff authored a photograph of Governor 

Andrew Cuomo with one hand raised (the “Photograph”). A copy of the Photograph 

is annexed to the complaint at Dkt. No. 1, Exhibit 1.

8. The Photograph was registered by the United States Copyright Office 

(“USCO”) on October 2, 2018, under Registration No. VA 2-122-004. See Exhibit 

1 annexed to the Declaration of James Messerschmidt (“Messerschmidt Decl.”), 

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annexed hereto. 

9. On April 11, 2022, Plaintiff first observed the Photograph on the 

Website featured in a story dated November 14, 2018. A copy of the screengrab of 

the Website displaying the Photograph is annexed to the Complaint at Dkt. No. 1,

Exhibit 2. 

10. The Photograph was displayed at URL:

https://www.gazetanews.com/governador-de-ny-indica-apoio-a-concessaodecarteira-de-motorista-a-indocumentados/index.html (“Infringement #1”). 

11. The Photograph was stored at URL:

https://midias.gazetanews.com/wp-content/uploads/2018/11/JamesMesserschmidtthe-new-york-post-300x199.jpg.

12. Without permission or authorization from Plaintiff, Defendant 

volitionally selected, copied, stored and displayed Plaintiff’s copyright protected 

Photograph on the Website. 

13. Upon information and belief, the Photograph was copied, stored and 

displayed without license or permission, thereby infringing on Plaintiff's copyrights 

(hereinafter the “Infringement”).

14. The Photograph has a proposed licensing fee based off the fair market 

value of a comparable image from Getty Images of $2,025.00. [See Messerschmidt

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PLAINTIFF’S MOTION FOR ENTRY OF DEFAULT FINAL JUDGMENT AND

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Decl., ¶¶ 14-15, Exhibit 2]. Plaintiff is seeking statutory damages of five (5) times 

the licensing fee for each infringement, for a total of $10,125.00.

15. On September 6, 2022, pursuant to Fla. Stat. 48.081, Defendant was 

served with a copy of the Summons and Complaint via Zigmar Vuelma, Treasurer 

for Defendant, at 1100 S. Federal Hwy., Deerfield Beach. Florida. On September 9, 

2022, the Affidavit of Service was filed with the Court. [Dkt. No. 7].

16. In an Order dated November 4, 2022, the Court ordered Defendant to 

retain counsel, who was to file a notice of appearance by November 21, 2022, and 

that Defendant was to file its response to the Complaint by December 5, 2022. [Dkt. 

No. 12]. 

17. Defendant failed to answer Plaintiff’s Complaint or otherwise comply 

with the Court’s November 4, 2022, Order, and as such, on December 16, 2022, 

Plaintiff filed an Application for Entry of Clerk’s Default against Defendant. [See 

Dkt. No. 16]. 

18. On December 16, 2022, the Clerk of the Court for the United States 

District Court for the Southern District of Florida entered a default against the 

Defendant. [See Dkt. No. 17]. 

19. In an Order dated January 9, 2023, the Court directed the Plaintiff to 

file a Motion for Default Final Judgment by January 23, 2023. [See Dkt. No. 20]. 

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20. As Defendant has failed to appear or otherwise defend this action and

has failed to comply with the Court’s Orders, Plaintiff is entitled to judgment by 

default against Defendant as a matter of law. 

21. Pursuant to the provisions of Rule 55(b)(2) of the Federal Rules of 

Civil Procedure, this Court is empowered to enter a default judgment against the 

Defendant for relief sought by Plaintiff in his Complaint.

22. Plaintiff respectfully requests that this Court grant this Motion for 

Default Judgment and award Plaintiff all relief requested in this Motion, which 

includes the following:

i. Plaintiff is awarded statutory damages for copyright infringement 

pursuant to 17 U.S.C. §504(c) in the amount of $10,125.;

ii. Attorneys’ fees in the amount of $6,337.50 pursuant to 17 U.S.C. 505;

and

iii.Costs in the amount of $477.00, pursuant to 17 U.S.C. §505.

MEMORANDUM OF LAW

I. Standard for Default Judgment

Federal Rule of Civil Procedure 55(a)-(b) describes a two-step process for 

entry of default judgment. First, the clerk of the court must enter a default where 

a plaintiff demonstrates that the defendant has failed to plead or otherwise defend 

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PLAINTIFF’S MOTION FOR ENTRY OF DEFAULT FINAL JUDGMENT AND

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the action. Fed. R. Civ. Pro. 55(a). Second, following the entry of default, a district 

court may enter default judgment against a properly served defendant who fails to 

defend or otherwise appear pursuant to Federal Rule of Civil Procedure 55(b)(2). 

Once a default is entered against a defendant, that party is deemed to have 

admitted the well-pleaded allegations of fact in the complaint. See Ordonez v. Icon 

Sky Holdings LLC, 2011 WL 3843890, (S.D. Fla. Aug. 30, 2011) (citing Buchanan 

v. Bowman, 820 F.2d 359, 361 (11th Cir.1987)); see also Antoine v. Atlas Turner, 

Inc., 66 F.3d 105, 110-11 (6th Cir. 1995). As stated above, Plaintiff has satisfied 

all procedural requirements for entry of a default judgment.

II. Plaintiff’s Complaint States a Valid Cause of Action for Copyright 

Infringement

The Copyright Act gives the copyright owner the exclusive rights to 

produce a copyrighted work and distribute copies of the work. See 17 U.S.C. 

§106(1)-(3). To prove a claim of copyright infringement, a plaintiff must show (1) 

ownership of a valid copyright, and (2) copying of elements of the original work. 

Feist Pubs., Inc. v. Rural Tel Serv. Co., Inc., 499 U.S. 340, 361 (1991). In the 

Complaint, Plaintiff alleges facts sufficient to establish copyright infringement by 

Defendant.

Plaintiff sufficiently alleges that it is the owner of all rights, title and interest 

in his respective Copyrights, and that these copyrights constitute original and 

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copyrightable subject matter under the Copyright Act. [Dkt. No. 1, ¶¶18-20]. 

Furthermore, by virtue of its valid registration of Plaintiff’s Copyrights, under 17 

U.S.C. §401(c), Plaintiff enjoys a presumption of ownership, originality and 

validity in the works at issue. S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1085 (9th

Cir. 1989). Thus, the registration number in the Complaint constitutes prima facie 

evidence of Plaintiff’s ownership of copyrights. [See Dkt. No. 1, ¶20; see also

Messerschmidt Decl., Exhibit 1].

Next, Plaintiff sufficiently alleged Defendant copied his Photograph: 

“[w]ithout permission or authorization from Plaintiff, Defendant volitionally 

selected, copied, stored and displayed Plaintiff’s copyright protected Photograph

on the Website. [Dkt. No. 1, ¶¶24-25]. Without permission or authorization from 

Plaintiff and in willful violation of Plaintiff’s rights under 17 U.S.C. §106, 

Defendant copied/displayed the Photograph.

Thus, Plaintiff has sufficiently stated a cause of action for copyright 

infringement, since the Complaint properly alleges 1) ownership of a valid 

copyright and 2) Defendant’s copying of Plaintiff’s original work.

III. Plaintiff is Entitled to Statutory Damages

Plaintiff seeks a total statutory damage award of $10,125.00 as 

compensation for Plaintiff’s damages, as a punishment for Defendant’s willful 

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conduct, and as a deterrent to future infringement by Defendant and others.

Plaintiff has attached as Exhibit 2 to the Plaintiff’s Declaration a Getty 

Image License approximation for a similar image as the one at issue in the instant 

case to evidence a fair market value for Defendant’s use on its Website. [See 

Messerschmidt Decl., ¶¶ 14-15, Exhibit 2]. 

In determining benchmark licensing fees, District Courts have used 

evidence derived from Getty Images, the leading stock photography agency, to 

establish an estimated fair market value of a license for a photograph. See, e.g., 

Smith v. Paul A. Castrucci, Architects, PLLC, No. 20-CV-3176 (JGK), 2021WL 

930628, at *1 (S.D.N.Y. Mar. 11, 2021) (on default, finding similar photograph 

had a benchmark licensing fee of $1,680 based on evidence submitted from Getty 

Images, coupled with the plaintiff’s sworn declaration); Cuffaro v. Fashionisto 

LLC, No. 19-CV-7265 (GBD) (KHP), 2020 WL 5077449, at *3 (S.D.N.Y. July 9, 

2020), report and recommendation adopted, 2020 WL 5076826 (S.D.N.Y. Aug. 

27, 2020) (on default judgment involving photograph with no licensing fee history, 

court credited evidence submitted from Getty Images to establish reasonable 

estimate of licensing fee for a similar photograph); Lorentz v. Sunshine Health 

Prod., Inc., No. 09-61529-CIV, 2010 WL 11492992, at *6 (S.D. Fla. Sept. 7, 

2010), report and recommendation adopted, No. 09-61529-CIV, 2010 WL 

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11493070 (S.D. Fla. Nov. 15, 2010) (the court found that “[t]o demonstrate 

entitlement to a reasonable licensing fee” Plaintiff may provide “evidence of 

benchmark licenses, that is, what licensors have paid for use of similar work’.”) 

(citations omitted). 

Here, Plaintiff seeks to recover five times the licensing fee, which is 

$2,025.00 per infringement [See Messerschmidt Decl. Exhibit 2].

Under 17 U.S.C. §412, registration is a prerequisite to recover statutory 

damages under sections 504 and 505. Provided that a work was registered prior to 

the infringement or within the first three months after publication, a copyright 

owner may choose to recover statutory damages instead of actual damages. 17 

U.S.C. §§412, 504(c)(1). Here, as evidenced in “Exhibit 1” to the Messerschmidt

Decl., the photograph was taken on August 15, 2018, and registered with the 

United States Copyright Office on October 2, 2018. The Photograph was 

discovered on the Defendant’s website on April 11, 2022. Thus, the Photograph 

was registered prior to the infringement as provided by §412. Accordingly, 

Plaintiff is entitled to recover statutory damages as well as attorneys’ fees and 

costs under 17 U.S.C. §§504 and 505, because the Photograph was registered prior 

to the Infringements.

A copyright owner may elect to recover either statutory damages or actual 

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damages and profits:

[T]he copyright owner may elect, at any time before final 

judgment is rendered, to recover, instead of actual 

damages and profits, an award of statutory damages for all 

infringements involved in the action, with respect to any 

one work, for which any one infringer is liable... in a sum 

of not less than $750 or more than $30,000 as the court 

considers just.

17 U.S.C. §504(c)(1); see also Arista Records, Inc. v. Beker Enterprises, Inc. 298. 

F.Supp. 2d. 1310, 1312 (S.D.Fla. 2003). The Copyright Act permits a minimum 

award of $750 and a maximum of $30,000. Id. A Plaintiff who demonstrates 

willful infringement may seek statutory damages of up to $150,000 per 

copyrighted work. 17 U.S.C. §504(c)(2).

In determining the amount of statutory damages under the Copyright Act, 

courts look to see if the amount is calculated to serve the purpose of awarding 

statutory damages, including compensation for lost profits, punishment of willful 

conduct, and deterring future infringing activity. Peer Int’l, 909 F.2d at 1336 (a 

guiding principle in setting the amount of statutory damages, particularly in cases 

of willful infringement, is “to sanction and vindicate the statutory policy of 

discouraging infringement” even for an “uninjurious and unprofitable invasion of 

copyright”). A plaintiff may elect statutory damages “regardless of the adequacy 

of the evidence offered as to his actual damages and the amount of defendant’s 

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profits.” Columbia Pictures Television, Inc. v. Krypton Broad of Birmingham, Inc. 

259 F.3d 1186, 1194 (9th Cir. 2001). Accordingly, “the court has wide discretion 

in determining the amount of statutory damages to be awarded.” Jackson v. 

Sturkie, 255 F. Supp. 2d 1096, 1101 (N.D. Cal. 2003).

Several courts have held statutory damages are appropriate in default 

judgment cases because the information needed to prove actual damages is within 

the infringers’ control and is not disclosed. PetMed Express, Inc. v. MedPets.Com, 

Inc., 336 F. Supp. 2d 1213 (S.D. Fla. 2004); Sara Lee Corp. v. Bags of New York, 

Inc., 36 F.Supp 2d 161 (S.D.N.Y. 1999), Phillip Morris USA, Inc. v. Castworld 

Products, Inc., 219 F.R.D. 494 (C.D. Cal. 2003). Statutory damages further 

“compensatory and punitive purposes,” and help “sanction and vindicate the 

statutory policy of discouraging infringement.” L.A. News Serv. V. Reuters 

Television Int’l., 149 F. 3d 987, 996 (9th Cir. 1998). “The United States Supreme 

Court has held that merely awarding damages equal to lost profits does not 

sufficiently deter infringements.” EMI Mills Music, Inc. v. Empress Hotel, Inc., 

470 F.Supp. 2d 67, 75 (D. Puerto Rico 2006) (citing F.W. Woolworth Co. v. 

Contemporary Arts, 344 U.S. 228, 233 (1952)). Therefore, a statutory damage 

award should significantly exceed the amount of the license fee, in order to put 

infringers on notice that it costs less to adhere to copyright laws than to violate 

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them. Broadcast Music, Inc. v. Star Amusements, Inc., 44 F.3d 485, 488 (7th Cir. 

1995).

Federal Courts typically award three to five times the amount of the 

licensing fee for each infringement. See Broadcast Music, Inc. v. R Bar of 

Manhattan, Inc., 919 F.Supp. 656, 660 (S.D.N.Y. 1996) (awarding statutory 

damages of approximately five times the amount of licensing fee); Sailor Music v. 

IML Corp., 867 F.Supp. 565, 700 (E.D.Mich. 1994) (awarding three times the 

amount of licensing fee); Broadcast Music, Inc. v. Kiflit, 2012 WL 4717852 (N.D. 

Cal. 2012) (granting statutory award of over three times the amount of licensing 

fee in order to compensate plaintiff’s lost profits and deter defendant’s future 

infringement); Halnat Pub. v. LAPA Inc., 669 F.Supp. 933 (D.Minn. 1987) 

(awarding over three times the lost registration fees); Broadcast Music, Inc. v. 

Entertainment Complex, Inc., 198 F.Supp. 2d 1291 (N.D. Ala. 2002) (awarding 

approximately three times the amount of unpaid licensing).

Here, an award of five (5) times the licensing fee for the photograph is 

appropriate because the amount is within the statutory guidelines of §504(C)(1) 

and necessary to punish Defendant, who has infringed upon Plaintiff’s 

photograph. Additionally, Defendant posted this photograph on a public website, 

where other people were able to view and copy it, which greatly decreases 

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Plaintiff’s ability to license the image. With the imposition of this award, Plaintiff 

seeks to deter Defendant and other infringers from unlawfully copying his 

photographs on websites and from exhibiting a total disregard for the Federal 

Rules and the judicial process. Plaintiff also seeks compensation for damages 

caused by Defendant’s infringement and to punish Defendant appropriately for its 

unlawful activities, the true extent of which is unknown as Defendant has failed to 

take part in this litigation.

IV. Plaintiff is Entitled to Attorney’s Fees and Costs

The Copyright Act permits the prevailing party to recover their full costs 

and attorney’s fees. 17 U.S.C. §505. Courts have frequently awarded full costs and 

attorney’s fees in order to: “(1) deter future copyright infringement; (2) ensure that 

all holders of copyrights which have been infringed will have equal access to the 

courts to protect their works; and (3) penalize the losing party and compensate the 

prevailing party.” Arista Records, Inc. v. Beker Enterprises, Inc. 298. F.Supp. 2d. 

1310, 1315-1316 (S.D. Fla. 2003) (citing A&N Music Corp. v. Venezia, 733 

F.Supp. 955, 959 (E.D.Pa. 1990)). Additionally, “courts regularly award 

attorney’s fees and costs on default judgment.” Id. (citing Sony Music 

Entertainment v. Cassette Production, 1996 WL 673158, *4 (D.N.J. 1996)). An 

award for attorney’s fees in copyright infringement cases are in “the trial court’s 

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discretion” but “they are the rule rather than the exception and should be awarded 

routinely.” Id. (citing Jobete Music Co., Inc. v. Hampton, 864 F. Supp. 7, 10 

(S.D.Miss. 1994)) (internal citations omitted). Furthermore, “a party that seeks to 

enforce its copyrights and prevails...should have its attorney’s fees awarded to 

promote enforcement of the Copyright Act and creativity, respectively.” Luken v. 

Int’l Yacht Council, Ltd., 581 F. Supp. 2d 1226, 1246 (S.D. Fla. 2008).

Here, since Plaintiff is the prevailing party, he is entitled to recover his full 

costs and attorney’s fees. To date, Plaintiff has incurred costs in the amount of 

$477.00, inclusive of the $402.00 filing fee and administrative fee and $75.00 in 

process server fees. [See Declaration of Craig B. Sanders, Esq. (“Sanders Decl.”)]. 

Plaintiff has also incurred $6,337.50 in attorney’s fees. [See Sanders Decl. Exhibit 

1]. Therefore, Plaintiff is entitled to recover a total $6,814.50 in fees and costs.

CONCLUSION

WHEREFORE, Plaintiffs respectfully requests that this Court grant 

Plaintiff’s Motion for Default Final Judgment and enter a Default Judgment 

against Defendant, Gazeta Brazilian News Corporation, awarding Plaintiff

$10,125.00 in statutory damages, $6,337.50 in attorney’s fees and $477.00 in costs 

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and for any further relief this court deems just and proper.

DATED: January 20, 2023

Respectfully submitted, 

SANDERS LAW GROUP

By: /s/ Craig B. Sanders 

Craig B. Sanders (Fla. Bar 985686)

333 Earle Ovington Boulevard, Ste 402

Uniondale, NY 11553

Tel: (516) 203-7600

csanders@sanderslaw.group 

Attorneys for Plaintiff

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on January 20, 2023, a true and correct copy of the 

foregoing Motion for Entry of Default Final Judgment was furnished by U.S. Mail 

to:

Gazeta Brazilian News Corporation

1100 S. Federal Highway, # 202

Deerfield Beach, Florida 33441

Dated: January 20, 2023

/s/ Craig B. Sanders 

Craig B. Sanders

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