Adding to this site’s archived case summaries of combat sports piracy judgements, reasons were released this week by the United States District Court, D. Maryland, assessing damages for the commercial piracy of the Cotto v. Alvarez boxing card.
In this week’s case (Joe Hand Promotions, Inc. v. Luz, LLC) the Defendant Tele Mare’s Restaurant, Inc. displayed the card in their restaurant without paying the commercial sub licence fees to the Plaintiff who enjoyed commercial distribution rights of the program. The cost would have been $2,200.
The Plaintiff obtained default judgement and sought $110,000 in damages for the infringement. The Court found that while damages were warranted these should be far less than sought largely because there was no pattern or prior infringement, no egregious circumstances and no proof the Defendant charged a cover fee or otherwise enjoyed significant advantage from their conduct. In awarding statutory damages of $2,200 and further enhanced damages of $6,600 District Judge Deborah K. Chasanow provided the following reasons:
In support of its claim for statutory damages in this case, Plaintiff attaches the affidavit of John Taylor, a private investigator who observed the Broadcast on one television inside the Tele Mare’s Restaurant on November 22, 2015 at approximately 12:54 a.m. (ECF No. 22-3). The investigator paid no cover charge to enter the establishment and remained inside for approximately eight minutes. Mr. Taylor estimated that the establishment’s capacity was approximately 50-75 people, and he counted 28 patrons at the establishment. The rate chart indicates that if Defendant had purchased a license, it would have paid $2,200 to exhibit the match in an establishment with a 0-100 person capacity. (See ECF No. 22-6). Accordingly, Plaintiff will be awarded statutory damages under § 605(e)(3)(C)(i)(II) in the amount of $2,200…
Plaintiff also seeks enhanced damages under 47 U.S.C. § 605(e)(3)(C)(ii), which authorizes “the court in its discretion . . . [to] increase the award of damages . . . by an amount of not more than $100,000 for each violation” of the provision. “In determining whether enhanced damages are warranted, other courts in this circuit have looked to several factors: 1) evidence of willfulness; 2) repeated violations over an extended period of time; 3) substantial unlawful monetary gain; 4) advertising the broadcast; and 5) charging an admission fee or charging premiums for food and drinks.” J & J Sports Prods., Inc. v. Royster, Civ. No. RWT-11-1597, 2014 WL 992779, at *4 (D.Md. Mar. 13, 2014) (quoting Quattrocche, 2010 WL 2302353, at *2)). Here, the fact that Defendant intercepted and exhibited the Broadcast willfully and for direct or indirect commercial advantage cannot be doubted. “After all, `[s]ignals do not descramble spontaneously, nor do televisions sets connect themselves to cable distribution systems.'” J & J Sports Prods., Inc. v. Castro Corp., Civ. No. 11-188, 2011 WL 5244440, at *4 (D.Md. Nov. 1, 2011) (alteration in original) (quoting Time Warner Cable v. Googuies Luncheonette, Inc., 77 F.Supp.2d 485, 490 (S.D.N.Y. 1999)). On the other hand, Defendant did not charge a cover fee, and there is no indication that Defendant engaged in such conduct before or after the incident or that it advertised the Broadcast.
“Where there are no allegations of repeat behavior or otherwise egregious willfulness warranting harsh punitive damages, courts in this Circuit have varied in awarding enhanced damages from no enhanced damages to up to five times the statutory damage amount.” Quattroche, 2010 WL 2302353, at *3 (emphasis added). As noted in J & J Sports Prod., Inc. v. Sabor Latino Rest., Inc., PJM 13-3515, 2014 WL 2964477, at *3 (D.Md. June 27, 2014), “some enhanced damages are proper to deter potential future unlawful uses of communications.” Furthermore, Judge Messitte recognized that “Where . . . no admission fee was charged, Judges in this District have typically multiplied the statutory damages by a factor of three to determine enhanced damages.” Accordingly, enhanced damages of $6,600 will be awarded. The total amount of damages will be $8,800.