United States District Court,

S.D. New York.

TOP RANK, INC., Plaintiff,
v.
ALLERTON LOUNGE, INC. and Angel Cortes, d/b/a Bottom Line, et al., Defendants.

No. 96 Civ. 7864(SS).

March 25, 1998.

ORDER

SOTOMAYOR, J.

*1 By Report and Recommendation dated March 3, 1998 (“Report”),

Magistrate Judge Ronald L. Ellis recommended statutory award damages
in this action against the defaulting defendants in the following
amounts:

§ 605
Willful Increase
§ 504
Willful Increase
Atty's Fees
Tota l

Crisci
$1000
$1000
$1000
$1000
$2058.85
$6058.85

Farrier
$1000
$1000
$750
$1000
$2163.24
$5913.24

El Vaq.
$1500
$1000
$1500
$1000
$1902.80
$6902.80

Lopez
$2000
$1000
$2000
$1000
$1926.80
$7926.80

98 3rd
$3750
$1000
$3750
$1000
$1969.68
11469.68

Martinez
$2500
$1000
$2500
$1000
$2056.20
$9056.20

Plaintiff has filed timely objections to the Report asking the Court
to reconsider the Magistrate Judge's statutory damage recommendation
arguing that the amount recommended is “too lenient to create an
appropriate deterrent” for the defendants' wilful copyright
infringement and default in this action. In making his recommendation,
the Magistrate Judge reasoned that:

The violation in this case was not particularly egregious nor is there
evidence of a pattern and practice. An award at the lower end of the
spectrum seems warranted. The court, therefore, has attempted to fix
an amount which corresponds to the pecuniary loss to the plaintiff.
Report at 7.

The Court agrees with the Magistrate Judge that the facts of this case
do not warrant a high end statutory damage award. A wilful
infringement, which the Magistrate Judge found, combined with a wilful
default, however, warrant an award greater and more significant than
one which corresponds so closely to an estimated loss to the
plaintiff. The Court agrees with the defendants that statutory damages
must be sufficient enough to deter future infringements and should not
be calibrated to favor a defendant by merely awarding minimum
estimated losses to a plaintiff. The Court finds, accordingly, the
recommended awards in the Report to be inadequate. The Court also
finds that the amounts awarded in Top Rank, Inc. v. Fiesta Restaurant
Systems, Inc., et al., No. 96-4585(JGK),-$5000 for violation of § 553,
$10,000 for violation of § 605, and $5,000 or violation of 17 U.S.C. §
101 et seq.-on facts nearly identical to this case, to be a better
measure of a low end award that adequately deters the wilful but
non-pattern conduct at issue in this case. Accordingly, after a de
novo review and for the reasons set forth in the Report and herein,
the Court adopts the Report except raises the amount awarded as
follows:

§ 605
Willful Increase
§ 504
Willful Increase
Atty's Fees
Tota l

Crisci
$5000
$5000
$5000
$5000
$2058.85
$22,059

Farrier
$5000
$5000
$5000
$5000
$2163.24
$22,163

El Vaq.
$5000
$5000
$5000
$5000
$1902.80
$21,903

Lopez
$5000
$5000
$5000
$5000
$1926.80
$21,927

98 3rd
$7500
$7500
$7500
$7500
$1969.68
$31,970

Martinez
$5000
$5000
$5000
$5000
$2056.20
$22,056

*2 The Clerk of the Court is directed to enter judgment in accordance

with this Order.

SO ORDERED.

S.D.N.Y.,1998.
Top Rank, Inc. v. Allerton Lounge, Inc.
Not Reported in F.Supp., 1998 WL 35152791 (S.D.N.Y.)
Motions, Pleadings and Filings (Back to top)

• 1:96cv07864 (Docket) (Oct. 17, 1996)

END OF DOCUMENT