One of the more recent strategies in suing following UFC and other combat sports piracy claims in the US are not only lawsuits seeking damages for violations of the Communications Act but also for Copyright infringement. Both can attract steep damages with reasons recently published demonstrating this pursuant to the Copyright Act.
In the recent case (Joe Hand Promotions, Inc v. Dupoux) the Plaintiff, who contractually secured commercial licencing rights for various combat sports pay per view programs, sued various defendants for displaying a pay per view without purchasing the commercial sub licencing right allowing them to do so. Some of the parties settled while others failed to respond. In securing default judgement for $90,000 in damages against the defaulting parties the Court noted that they were liable for copyright infringement in not only displaying the works but also advertising their display of the programs on their social media. In agreeing to this assessment of damages District Judge Beth Bloom provided the following reasons:
Plaintiff has elected to recover an award of statutory damages pursuant to § 504(c) for its copyright infringement claims. Such an award of statutory damages is appropriate because statutory damages may be elected whether or not there is adequate evidence of the actual damages suffered by Plaintiff or of the profits reaped by Dupoux and F&L. Harris v. Emus Records Corp., 734 F.2d 1329, 1335 (9th Cir. 1984). Moreover, the allegations in the Complaint, which are taken as true, establish that Dupoux and F&L infringed upon Plaintiff’s copyrighted material for the purpose of deriving the benefit of the value of Plaintiff’s copyrighted works in order to drive patrons to their establishment for economic gain. As such, § 504(c)(1) permits an award of statutory damages in the sum of not less than $750.00 and not more than $30,000.00 per copyrighted work. Further, if the Court finds that Dupoux and F&L’s copyright infringement was willful, “the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000.00.” 17 U.S.C. § 504(c)(2). Further, knowledge and willfulness of the infringement need not be proven directly but may be inferred from a defendant’s conduct.” Joe Hand Promotions, Inc. v. Phillips, No. 19-21723-CIV, 2020 WL 3404964, at *2 (S.D. Fla. June 19, 2020) (citing Island Software & Comput. Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 264 (2d Cir. 2005) (“a plaintiff can still prove willfulness by proffering circumstantial evidence that gives rise to an inference of willful conduct”)).
In addition to its well-pled factual allegations of copyright infringement, Plaintiff has also submitted documentation to support its assertion of willfulness or deliberate indifference. See ECF No. ; see also ECF Nos. [15-2] — [15-14]. These exhibits submitted in support of Plaintiff’s Motion suggest that Dupoux and F&L’s infringement was willful, as evidenced by the advertisement and promotion of the event broadcasting Plaintiff’s copyrighted programming on various social media platforms and the subsequent exhibition of the event. As a result, Plaintiff seeks a total statutory damage award of $90,000.00 against Dupoux and F&L jointly and severally, which represents approximately three times the amount of the licensing fees that it would have been owed, if not for the willful copyright infringement
The Court finds that this award is sufficient to deter Dupoux and F&L and others from continuing to infringe upon Plaintiff’s copyrights, and to compensate Plaintiff for the infringement. See Affordable Aerial Photography, Inc. v. Villa Valentina Realty LLC, No. 17-81307-CIV, 2018 WL 8129826, at *4 (S.D. Fla. June 7, 2018) (“Specifically, when an infringing party does not provide expenses saved and profits reaped by the infringing party, the court will instead only look to the actual damages and willful conduct and award an amount of two to three times actual damages to fully compensate Plaintiff and adequately deter future conduct like that of the Defendant.”). Further, courts “have recognized that awards of three times the licensing fee for each work infringed is appropriate, particularly where, as here, the infringement resulted from a deliberate indifference toward copyright laws.” Phillips, 2020 WL 3404964, at *3 (citing Broad. Music, Inc. v. Ent. Complex, Inc., 198 F. Supp. 2d 1291, 1296 (N.D. Ala. 2002) (awarding “approximately three times the amount of licensing fees that Defendants would have owed to Plaintiffs, which courts have generally upheld as an appropriate sanction to ensure that the cost of violating the copyright laws is substantially greater than the cost of complying with them”)). Therefore, the Court finds that this award of statutory damages falls within the permissible statutory range under 17 U.S.C. § 504(c) and is just in light of the violations here.