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Sadowski v. Shivley

United States District Court, D. Oregon, Medford Division

October 30, 2019

CHRISTOPHER SADOWSKI, Plaintiff,
v.
HENRY SHIVLEY and DOES 1 through 10 inclusive. Defendants.

          OPINION & ORDER

          MICHAEL McSHANE United States District Judge.

         Plaintiff Christopher Sadowski brought this action for damages and injunctive relief against Defendant Henry Shivley, doing business as www.fromthetrenchesworldreport.com, alleging claims for copyright infringement under the Copyright Act, 17 U.S.C. §§ 101-1332, and for falsification, removal, and alteration of copyright management information under 17 U.S.C. § 1202 of the Digital Millennium Copyright Act (“DMCA”). A default was entered against Plaintiff on April 18, 2019. ECF No. 14. Plaintiff now moves for default judgment against Shivley pursuant to Federal Rule of Civil Procedure 55, ECF No. 15. Plaintiff's Motion is GRANTED IN PART.

         BACKGROUND

         Plaintiff is a professional photographer and has licensed or sold his photographs to dozens of major media outlets. Plaintiff is the sole author and exclusive rights-holder to two photographs, which are identified as Image A and Image B and are attached as Exhibits A and B to the Complaint. ECF No. 1.

         Defendant Shivley owns and operates the news site www.fromthetrenchesworldreport.com (the “Website”). Shively posts content on the Website to attract user traffic and drive advertising revenue.

         Image A is a photograph of a car crash. Plaintiff registered Image A with the U.S. Copyright Office on March 31, 2015, under registration number VA 1-954-323. Image A originally appeared in an article entitled Bob Simon's driver had ‘dead' arm, 9 prior license suspensions, published by the New York Post on February 12, 2015 (“Post Article A”). The article included an attribution to Plaintiff under the bottom left corner of Image A. Compl. Ex. C.

         On April 15, 2017, Plaintiff discovered that Shivley had used Image A in an article on the Website entitled Co-worker warned limo boss about Bob Simon's ‘erratic' driver, which cited Post Article A but excluded the credit given to Plaintiff. Compl. Ex. E.

         Image B a photograph of a vehicle collision with a police car. Plaintiff registered Image B with the U.S. Copyright Office on August 26, 2018, under registration number VA 2 019-488. Image B originally appeared in an article entitled ‘I want to kill cops': Man who ‘tried to run over' officers, published by the New York Post on January 8, 2015 (“Post Article B”). The article included an attribution to Plaintiff under the bottom left corner of Image B. Compl. Ex. D.

         On June 11, 2018, Plaintiff discovered that Shivley has used Image B in an article on the Website entitled ‘I want to kill cops': Man who ‘tried to run over' officers, which cited Post Article B but excluded the credit to Plaintiff. Compl. Ex. F.

         Plaintiff did not authorize the use of Image A or Image B by Shivley. On August 13, 2018, Plaintiff's counsel attempted to contact Shivley with respect to Image B, but did not receive an answer.

         Plaintiff filed this action on September 25, 2018. On October 18, 2018, Shivley, acting pro se, filed an Answer entitled “the Response.” ECF No. 7. The Response was comprised of quasi-legal gibberish and “sovereign citizen” arguments. Plaintiff filed a motion to strike the Response, which the Court granted on January 22, 2019. ECF No. 11. Shivley was given fourteen days in which to file an amended answer. Shivley did not file an amended answer and has not otherwise appeared or defended in this action.

         Plaintiff sought entry of default, which was granted on April 18, 2019. ECF Nos. 13, 14. Plaintiff has now filed this Motion for Default Judgment. ECF No. 15. Shivley has not responded and time for doing so has elapsed.

         LEGAL STANDARD

         Under Rule 55(a), the clerk of court is required to enter an order of default if a party against whom affirmative relief is sought has failed to timely plead or otherwise defend an action. Fed.R.Civ.P. 55(a). “[U]pon default the factual allegations of the complaint, except those relating to the amount of damages, will be taken as ...


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