UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PSYCHOPATHIC RECORDS, INC.,

Plaintiff,

v.

JEFFERY S. ANDERSON,

Defendant.

 /

Case No. 08-cv-15034

HONORABLE STEPHEN J. MURPHY, III

OPINION AND ORDER GRANTING

PLAINTIFF'S RENEWED MOTION FOR DEFAULT 

JUDGMENT (docket no. 18) AND DENYING DEFENDANT'S

VARIOUS MOTIONS AND REQUESTS (docket nos. 14, 17, 19, 24, & 26)

This is an intellectual property dispute brought by a recording company against pro

se defendant Jeffery Anderson. Before the Court are plaintiff Psychopathic Records, Inc.'s

("Psychopathic") renewed motion for default judgment, and Anderson's various motions

and requests. For the reasons stated below, the Court grants Psychopathic's renewed

motion for default judgment and denies all of Anderson's motions and requests. 

PROCEDURAL HISTORY

The facts underlying this dispute were set forth in the Court order of August 24, 2009.

Anderson was declared in default on January 9, 2009. Psychopathic filed a motion for

default judgment, which the Court denied. Order of August 24, 2009, at 2-3. The Court

denied the motion because Psychopathic had requested money damages, yet failed to

provide any evidence of damages, and because Psychopathic had failed to demonstrate

that it was entitled to the relief it sought. On the latter point, the Court concluded that

Psychopathic's copyright claims were predicated on the theory that its copyright in the

sound recording of "Tales from the Lotus Pod" also conferred on it a copyright interest in
 1 The complaint asserts trademark claims against Anderson. Psychopathic's original

motion for default judgment contained argument regarding its trademark claims, but the

argument was wholly conclusory and unhelpful. Its renewed motion contains no argument

supporting the trademark claims. The Court construes this absence of any support as a

tacit withdrawal of its trademark claims.

 2 The Court has concluded in its discretion that, provided Psychopathic is legally entitled

to the relief it seeks, a default judgment should be entered in its favor. The Court implicitly

made this finding in its order denying the original motion. It now makes that finding and

reasoning explicit. A district court considers the following factors in determining whether

to enter a default judgment: 1) possible prejudice to the plaintiff; 2) the merits of the

2

the artwork appearing on the album's cover, specifically the Lotus Cross design. The Court

concluded that this theory of ownership required further elaboration and invited

Psychopathic to renew its motion. The order required that any renewed motion should be

accompanied by "a full explanation of the legal theories on which their claims rely, and of

how these theories relate to the facts of this case . . . ." Id. at 3.

Psychopathic has renewed its motion. It has expressly withdrawn its request for

damages and attorney fees, and asks for the following: 1) a declaration that Anderson lacks

any valid claim of ownership or other rights to any copyrightable subject matter claimed or

embodied in his copyright registration (Registration no. VAu 738-615 or '615 Registration);

2) a declaration that Anderson's copyright registration is invalid because it does not comply

with the provisions and requirement of U.S. copyright law and should be cancelled before

the U.S. Copyright Office; and 3) an order enjoining Anderson from making statements

contrary to the Court's declarations.1

 Pl.'s Mot. 2, 4.

DISCUSSION

I. Psychopathic's Renewed Motion for Default Judgment

The remaining issue before the Court with respect to Psychopathic's renewed default

judgment motion is whether Psychopathic has adequately demonstrated a right to the relief

it seeks.2

 Anderson's status in default does not, solely for that reason, entitle Psychopathic
plaintiff's claim; 3) the sufficiency of the complaint; 4) the amount of money at stake; 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 decisions on the merits. See Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986);

see also Marshall v. Bowles, 92 F. App'x 283, 285 (6th Cir. 2004) (addressing the first four

factors). Psychopathic would suffer prejudice were the Court not to grant default judgment.

During the pendency of this case, Anderson has not filed a proper response to the

complaint. Were the Court to dismiss the case without prejudice rather than issue a default

judgment, it is unlikely that Anderson would properly answer the complaint were

Psychopathic to sue him again. Psychopathic's remaining options for obtaining relief would

be non-existent. There is no money at stake in this case. There may exist a dispute over

who created the design first, but that dispute is not genuine. Anderson contends he

created the design in 1999, before Psychopathic did. See docket no. 9. But Anderson's

registration certificate indicates that he created it in 2005. The certificate is prima facie

evidence of this fact. See 17 U.S.C. § 410(c). Anderson's default was willful, and not the

result of excusable neglect. The second and third factors, which also weigh in favor of

granting default judgment, are discussed below.

 3

 Psychopathic's original motion for default judgment contained, perhaps inadvertently,

a brief discussion of copyright infringement. 

3

to a default judgment. See 10A Charles A. Wright, Arthur R. Miller, & Mary K. Kane,

Federal Practice and Procedure § 2688, at 63 (3d ed. 1998) ("Even after default, however,

it remains for the court to consider whether the unchallenged facts constitute a legitimate

cause of action, since a party in default does not admit mere conclusions of law."). The

moving party must demonstrate an entitlement to relief.

Psychopathic asks the Court to declare that Anderson's '615 Registration is invalid

and should be cancelled before the U.S. Copyright Office. It does not ask the Court to

declare that Anderson's design infringes Psychopathic's Lotus Cross design, nor could it,

since it does not have a copyright registration for the Lotus Cross design.3

 See 17 U.S.C.

§ 411(a) ("[N]o civil action for infringement of the copyright in any United States work shall

be instituted until preregistration or registration of the copyright claim has been made in

accordance with this title."); Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1241-42

(2010); Murray Hill Publ'ns, Inc. v. ABC Commc'ns, Inc., 264 F.3d 622, 630 (6th Cir. 2001)
 4

 Although not mentioned in the motion or brief, it is this proposition of law on which

Psychopathic relies; it does not rely on the theory that it accrued a copyright ownership in

the design by way of its copyright in the sound recording on the cover of which the design

initially appeared.

4

("With very limited exceptions not relevant here, registration is a prerequisite to filing a

copyright infringement suit."), abrogated on other grounds by Muchnick, 130 S. Ct. 1237.

A registration may be invalid if, among other reasons, the copyrighted material lacks

originality and was therefore not subject to copyright protection in the first place. See Feist

Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991) ("The sine qua non of

copyright is originality."); see also Mon Cheri Bridals, Inc. v. Wen Wu, No. 09-1239, 2010

WL 2222497, *2 (3d Cir. June. 4, 2010) (unpublished) (addressing invalidity claim based

on lack of originality). The introduction of a certificate of registration from the Copyright

Office is prima facie evidence of validity and of the facts stated in the certificate. See 17

U.S.C. § 410(c). A copy of Anderson's copyright registration is attached to the complaint.

To succeed on its claim of invalidity, therefore, Psychopathic must demonstrate that

Anderson's design, embodied in the '615 Registration, is not original. "Original, as the term

is used in copyright, means only that the work was independently created by the author (as

opposed to copied from other works), and that it possesses at least some minimal degree

of creativity." Feist, 499 U.S. at 346. Originality is not the same as novelty, and a work

may be original even though it closely resembles other works, so long as the similarity is

fortuitous and not the result of copying. Id.

Psychopathic contends that Anderson's design is merely a copy of Psychopathic's

Lotus Cross design and not original. Psychopathic does not possess a copyright

registration for the design, but the design is nevertheless subject to copyright protection.4

See 17 U.S.C. § 408(a) ("registration is not a condition of copyright protection."); see also
 5

 Moreover, a cursory comparison between the two demonstrates this fact by a

preponderance of the evidence.

5

5 Melville B. Nimmer and David Nimmer, Nimmer on Copyright § 21.01[F], 21-36 (2010)

("[R]egistration is not a condition of copyright protection."). "Copyright protection subsists

from the time the work is created in fixed form. The copyright in the work of authorship

immediately becomes the property of the author who created the work." Id. at 21-27.

Psychopathic alleged in its complaint that it created the Lotus Cross design -- and thus

received copyright protection for the design -- as early as July 23, 2002, when the design

was published on the cover of the album "Tales from the Lotus Pod." Compl. ¶ 6.

According to the '615 Registration itself, Anderson created his design in 2005, nearly three

years after Psychopathic created the design. Compl. ¶ 14 & Ex. E. Psychopathic's

allegations that Anderson merely copied the design, see Compl. ¶¶ 28, 38 ("[Anderson] has

illegally and without permission copied [Psychopathic's] LOTUS CROSS design and

claimed it at [sic] his own in the '615 Registration."), are deemed true in light of Anderson's

default. See Ford Motor Co v. Cross, 441 F. Supp. 2d 837, 846 (E.D. Mich. 2006).5

Because Anderson's design is a copy of Psychopathic's Lotus Cross design, it lacks

originality, and is therefore not subject to copyright protection. The '615 Registration was

improvidently granted. 

Having found Anderson's design unoriginal and not subject to copyright protection, the

Court must determine whether Psychopathic is entitled to the remedy it seeks.

Psychopathic asks first for a declaration that Anderson lacks any valid claim of ownership

in or other rights to the Lotus Cross design, and that his '615 Registration is invalid and

should be cancelled before the U.S. Copyright Office. The Court will grant this request

pursuant to the authority it has under the Declaratory Judgment Act, 28 U.S.C. § 2201(a),
6

which provides that a district court may "declare the rights and other legal relations of any

interested party seeking such declaration." Id. The declaration shall be embodied in a final

judgment.

In addition, Psychopathic seeks an injunction preventing Anderson from making any

statements to third parties that he has rights in the Lotus Cross design. 17 U.S.C. § 502(a)

authorizes district courts to grant injunctions deemed "reasonable to prevent or restrain

infringement of a copyright." Although Psychopathic has not brought an action for

infringement in this case, the Court may still enjoin Anderson under § 502(a) from making

statements that he has a copyright in the Lotus Cross design, because the Court finds an

injunction is a reasonable remedy fashioned to prevent infringement. See Olan Mills, Inc.

v. Linn Photo Co., 23 F.3d 1345, 1349 (8th Cir. 1994) ("The power to grant injunctive relief

is not limited to registered copyrights, or even to those copyrights which give rise to an

infringement action." (citing Pac. & S. Co. v. Duncan, 744 F.2d 1490, 1499 n. 17 (11th Cir.

1984)); accord Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1154 n.1 (9th Cir.

2007).

To obtain a permanent injunction, a plaintiff must demonstrate 1) that it has suffered

an irreparable injury; 2) that remedies available at law, such as monetary damages, are

inadequate to compensate for that injury; 3) that, considering the balance of hardships

between the plaintiff and defendant, a remedy in equity is warranted; and 4) that the public

interest would not be disserved by a permanent injunction. See eBay Inc. v.

MercExchange, L.L.C., 547 U.S. 388, 391 (2006); see also id. at 392-93 ("[T]his Court has

consistently rejected various invitations to replace traditional equitable considerations with

a rule than an injunction automatically follows a determination that a copyright had been

infringed."); 17 U.S.C. § 502(a) (courts "may" issue injunctions). The decision rests within
7

a court's equitable discretion. Id. at 934. In exercising its discretion, however, a court does

not write on a clean slate or "on a whim," and should be mindful of the long-standing

historical practice of granting injunctive relief upon a finding of infringement in the vast

majority of cases. Id. at 395 (Roberts, C.J., concurring).

Anderson has in the past made statements to a web hosting service that he has rights

to the Lotus Cross design superior to Psychopathic's by virtue of the '615 Registration.

Compl. ¶ 20 & ex. G. The hosting service, on the basis of Anderson's statements,

threatened to remove Psychopathic's ability to process sales of goods bearing the design

on the website www.hatchetgear.com unless Psychopathic removed the goods

immediately. Id. Psychopathic does not allege that the hosting service ever removed

Psychopathic's ability to sell goods on www.hatchetgear.com, but alleges a reasonable fear

of such action in the future. Id. ¶ 21.

Although Psychopathic's brief contains no discussion of how the four-factor test

applies here, the Court concludes that a permanent injunction is warranted. Anderson's

continued assertions to third parties that he owns the copyright to the Lotus Cross design

has already caused, and will continue to cause, irreparable harm to Psychopathic,

especially since Anderson possesses a certificate of registration supporting his claim of

right. Money damages resulting from any future false statements regarding the Lotus

Cross design are incapable of calculation, and thus an award of damages would be

inadequate. The balance of hardships tilts in Psychopathic's favor since it is easier for

Anderson to comply with an injunction than it is for Psychopathic to have to continually seek

damages from various courts as a result of Anderson's false statements regarding

ownership of the design. Finally, the public interest is served by preventing the

dissemination of false information regarding the ownership rights in the Lotus Cross design,
8

and by promoting the arts by protecting Psychopathic's copyright in the Lotus Cross design.

U.S. Const. art. I, § 8, cl. 8. The Court will therefore grant the requested injunction. 

II. Anderson's Various Motions and Requests

As stated above, Anderson has filed various motions and requests in which he asks

the Court to enter judgment in his favor and order Psychopathic to deliver to him all goods

bearing the Lotus Cross design so that they may be destroyed. He also asks for his lost

profits. Anderson has never filed a pleading in this case that would support the relief he

seeks. Moreover, Anderson has already been declared in default and cannot now contest

the veracity of the well-pleaded facts in the complaint without having the default set aside,

which Anderson has never requested the Court do. For the reasons stated above, these

uncontested facts demonstrate that Psychopathic has a copyright in the Lotus Cross design

and that Anderson lacks any sort of rights in the design or works derived therefrom.

Accordingly, he is not entitled to the relief he seeks. His motions and requests will be

denied.

ORDER

WHEREFORE, it is hereby ORDERED that Plaintiff's renewed motion for default

judgment (docket no. 18) is GRANTED.

The Court DECLARES as follows:

(1) Jeffery Anderson lacks any valid claim of ownership or other rights to any

copyrightable subject matter claimed or embodied within U.S. Copyright Registration VAu

738-615 for the "Lotus Cross" design.

(2) Because Jeffery Anderson lacks any valid claim of ownership or other rights to any

copyrightable subject matter claimed or embodied within any of the '615 Registration, the

'615 Registration is invalid since it does not comply with the provisions and requirements
9

of the U.S. Copyright Act, and otherwise interferes with the Plaintiff’s exclusive rights to

prepare derivative works, and should therefore be cancelled before the U.S. Copyright

Office.

IT IS FURTHER ORDERED THAT Jeffery Anderson is ENJOINED as follows:

Jeffery Anderson shall not make any further statements or representations to any third

party that a) states, suggests, or implies that Anderson possesses or owns any type of right

to the subject matter of the '615 Registration which is superior to the legal rights enjoyed

by Psychopathic Records, Inc.; b) asserts any aspect of the '615 Registration to restrict,

inhibit, or impede Psychopathic Records, Inc.'s lawful business and transactions to offer,

sell, and provide the LOTUS CROSS copyright and design to third parties; c) asserts that

Anderson somehow possesses or owns rights in the '615 Registration which are superior

to the rights owned and/or enjoyed by Psychopathic Records or that Psychopathic Records

is somehow infringing alleged rights possessed by Anderson in the '615 Registration.

IT IS FURTHER ORDERED THAT Defendant's motions and requests (docket nos.

14, 17, 19, 24, & 26) are DENIED. 

s/Stephen J. Murphy, III 

STEPHEN J. MURPHY, III

United States District Judge

Dated: November 10, 2010

I hereby certify that a copy of the foregoing document was served upon the parties and/or

counsel of record on November 10, 2010, by electronic and/or ordinary mail.

Alissa Greer 

Case Manager