FEMA Test Answers, LLC v. Smith et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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FEMA TEST ANSWERS, LLC,
REPORT AND
RECOMMENDATION
22 CV 1108 (MKB) (CLP)
Plaintiff,
-against-
FOREST SMITH, et al.,
Defendant.
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POLLAK, United States Magistrate Judge:
On March 1, 2022, plaintiff FEMA Test Answers, LLC (“plaintiff” or “FEMA Test
Answers”) commenced this action against defendants Forest Smith and Samien Bissessar,
(“defendants”), alleging violations of the Copyright Act of 1976, 17 U.S.C. §§ 101, et seq.
(Compl.1). On August 30, 2024, plaintiff filed a Second Amended Complaint, alleging
violations of the Copyright Act of 1976, 17 U.S.C. §§ 101, et seq. (SAC2). Currently pending
before this Court is plaintiff’s Motion for Default Judgment against defendant Forest Smith3 (the
“Motion” or “Mot.”4), which was referred to the undersigned for a Report and Recommendation.
(ECF Order dated August 26, 2025).
BACKGROUND
Plaintiff FEMA Test Answers, LLC is a Michigan limited liability company, with its
principal place of business located in Hillman, Michigan. (SAC ¶ 2). Plaintiff provides an
1 Citations to “Compl.” refer to the plaintiff’s Complaint, filed March 1, 2022 (ECF No. 1).
2 Citations to “SAC” refer to plaintiff’s Second Amended Complaint, filed August 30, 2024 (ECF No. 59).
3 By Stipulation so ordered on December 16, 2025, the claims and counterclaims between plaintiff FEMA
Test Answers and Bissessar, and third-party plaintiff Bissessar and third-party defendant Pickelhaupt, were
dismissed with prejudice (ECF Nos. 98, 100).
4 Citations to “Mot.” refer to plaintiff’s Motion for Default Judgment, filed August 22, 2025 (ECF No. 92).
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online study guide (the “Study Guide”) to assist people who are taking the Federal Emergency
Management Agency’s (“FEMA”) Independent Study Courses (“IS Courses”). (Id. ¶ 8).
Students taking an IS Course can take an online exam offered through FEMA’s website; the
Study Guide shows people who will be taking the course the real questions that may appear on
the exam, including the correct answers, and provides help for those who get the questions
wrong. (Id. ¶¶ 10, 11). The Study Guide was created by David Pickelhaupt, an employee of
plaintiff, who reviewed the course materials for the IS Courses, selected portions that he thought
would be most useful to students, collected all the questions and answers that could be
potentially be used by FEMA, and arranged the questions in an order he believed corresponded
to the order in which the subject matter appears in IS Course material, in order to simplify
student use of the Study Guide. (Id. ¶¶ 8, 16, 18, 27). The Study Guide identifies the correct
answer for each question by highlighting the answer or indicating it in colored text. (Id. ¶ 20).
The Study Guide also includes references for review and/or explanatory information about the
questions. (Id. ¶¶ 20, 21). The highlighting or coloring of answers, review references, and
explanatory notes are referred to as “Study Guide Additions.” (Id. ¶ 33).
Plaintiff alleges that none of the Study Guide Additions appear in the materials provided
by FEMA; they are original creations of David Pickelhaupt, which were created beginning in
2004. (Id. ¶ 34). Some of the Study Guide Additions are the subject of Copyright Registration
No. TXu001809215 (the “215 Registration”), dated May 3, 2012. (Id. ¶ 35, Ex. 1). Later Study
Guide Additions are the subject of Copyright Registration No. TX 9-361-306 (the “306
Registration”), dated February 1, 2024. (Id. ¶ 36, Ex. 2). Plaintiff FEMA Test Answers uses the
Study Guide Additions under an exclusive license from Pickelhaupt, which gives plaintiff the
exclusive right to reproduce, publicly perform, display, transmit, and distribute the Study Guide
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Additions, create derivative works, and enforce the copyright by bringing actions regarding any
infringement thereof. (Id. ¶ 38). Plaintiff identifies the two Registrations on its website,
including the terms and conditions which prohibit all users from modifying or copying the
materials from plaintiff’s website. (Id. ¶¶ 39, 40).
Defendant Smith, who resides at 1851 Pitkin Avenue, Brooklyn, N.Y. 11207, operates an
internet business at https://femacourses.com/ (the “Smith Site”). (Id. ¶ 3). Plaintiff alleges that
defendant Smith, without authorization, copied the Study Guide Additions and used them to
market and sell competing collections of multiple-choice questions and answers for the IS
Courses. (Id. ¶ 41). Plaintiff provides examples of its study guide and Smith’s guide to the same
exam, noting that Smith’s version contains the same highlighting as the Study Guide Additions,
with the only change being coloring. (Id. ¶¶ 42, 43, 45; compare Exs. 3 and 4). Plaintiff further
alleges that defendant has made use of the review references contained in the Study Guide
Additions, as well as the explanatory notes. (Id. ¶ 46). Thus, on information and belief, plaintiff
alleges that defendant Smith has willfully infringed on plaintiff’s 215 and 306 Copyright
Registrations by purchasing the collections of questions and answers from plaintiff’s website and
then posting them on defendant’s own website. (Id. ¶¶ 48-50).
Plaintiff further alleges that defendant Smith coordinated efforts with defendant
Bissessar, and brings two counts of copyright infringement under 17 U.S.C. § 501. (Id. ¶¶ 54,
66-79). Plaintiff seeks a permanent injunction, enjoining defendant from using, copying,
creating derivative works or otherwise infringing the Study Guide Additions, an Order requiring
defendant to account for all profits derived from the infringement, and an award of such profits
along with compensatory or statutory damages. (Id. Prayer for Relief).
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PROCEDURAL HISTORY
Following the filing of the initial Complaint on March 1, 2022, and motion practice filed
by defendant Bissessar, plaintiff filed an Amended Complaint on July 14, 2022. (ECF No. 18).
Counsel for defendant Smith filed a Notice of Appearance on April 10, 2023 (ECF Nos. 35, 36),
along with a request for a pre-motion conference to dismiss the claims. (ECF No. 37). The
district court directed the parties to file a proposed briefing schedule for the motion to dismiss
and, on June 26, 2024, granted Smith’s motion to dismiss, but allowed plaintiff to file a Second
Amended Complaint, which was filed on August 30, 2024. (SAC). The parties then engaged in
settlement negotiations, during which the time for defendants to answer was extended five times
on consent of all parties, with defendant Smith ultimately filing an Answer on January 16, 2025.
(ECF No. 66).
Settlement discussions continued until March 11, 2025, when counsel for defendant
Smith moved to withdraw, alleging inter alia, communication issues with their client. (ECF No.
72). The Court granted the motion to withdraw on April 14, 2025, and ordered defendant Smith
to notify the Court by May 14, 2025, whether he obtained new counsel or was prepared to
proceed pro se. (ECF No. 78). Defendant Smith failed to respond to the Court’s Order, and, in a
status report submitted by the other parties on June 13, 2025, the parties indicated that defendant
Smith had not been in communication with plaintiff, defendant Bissessar, or Third-Party
defendant Pickelhaupt. (ECF No. 83).
On July 21, 2025, plaintiff requested a certificate of default against defendant Smith,
which was entered by the Clerk of Court on July 22, 2025. (ECF Nos. 89, 91). On August 22,
2025, plaintiff filed the instant Motion for default judgment against defendant Smith. (ECF No.
92). The Motion for default judgment was thereafter referred to the undersigned. (ECF Order
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dated August 26, 2025). On October 20, 2025, this Court issued an Order giving defendant
Smith one last opportunity to appear, indicating that the Motion for default judgment would be
decided on plaintiff’s papers unless defendant requested a hearing or submitted his own papers
by November 3, 2025. Having received no communication from defendant Smith, the Court
proceeds to evaluate plaintiff’s motion.
DISCUSSION
I. 	Default Judgment
A. 	Legal Standard
Rule 55 of the Federal Rules of Civil Procedure sets forth a two-step process for the entry
of a default judgment. See Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95-96 (2d Cir. 1993).
First, the Clerk of Court enters the default pursuant to Rule 55(a) by notation of the party’s
default on the Clerk’s record of the case. See id.; see also Fed R. Civ. P. 55(a) (providing that
“[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or
otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the
party’s default”). Second, after the Clerk of Court enters a default against a party, if that party
fails to appear or otherwise move to set aside the default pursuant to Rule 55(c), the court may
enter a default judgment. See Fed. R. Civ. P. 55(b). Where the amount of damages owed
requires a judicial finding, a default judgment may be entered once the court has conducted a
hearing or made a referral to determine the question of damages. See Fed. R. Civ. P. 55(b)(2).
Providing guidance as to when a default judgment is appropriate, the Second Circuit has
cautioned that since a default judgment is an extreme remedy, it should only be entered as a last
resort. See Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981). While the Second Circuit has
recognized the “push on a trial court to dispose of cases that, in disregard of the rules, are not
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processed expeditiously [and] . . . delay and clog its calendar,” it has held that the district court
must balance that interest with its responsibility to “[afford] litigants a reasonable chance to be
heard.” Enron Oil Corp. v. Diakuhara, 10 F.3d at 95-96. Thus, in light of the “oft-stated
preference for resolving disputes on the merits,” default judgments are “generally disfavored,”
and doubts should be resolved in favor of the defaulting party. Id. Furthermore, “[Rule] 55(b)
states that a judgment by default ‘may’ be entered under specified circumstances, not that it
must.” See Erwin DeMarino Trucking Co. v. Jackson, 838 F. Supp. 160, 162 (S.D.N.Y. 1993)
(noting that courts must “supervise default judgments with extreme care to avoid miscarriages of
justice”). Accordingly, a plaintiff is not entitled to a default judgment as a matter of right simply
because a defendant is in default.
The Court has significant discretion to consider several factors in deciding whether to
grant a default judgment, including: (1) whether the claims were adequately pleaded in the
Complaint, thereby placing the defendant on notice, see Fed. R. Civ. P. 54(c) (stating: “[a]
default judgment must not differ in kind from, or exceed in amount, what is demanded in the
pleadings”), cf. King v. STL Consulting, LLC, No. 05 CV 2719, 2006 WL 3335115, at *4-5
(E.D.N.Y. Oct. 3, 2006) (holding that Rule 54(c) is not violated in awarding damages that
accrued during the pendency of a litigation, so long as the complaint put the defendant on notice
that the plaintiff may seek such damages), adopting report and recommendation, id. at *1-9; (2)
“‘whether the grounds for default are clearly established;’” and (3) “‘the amount of money
potentially involved.’” Hirsch v. Innovation Int’l, Inc., No. 91 CV 4130, 1992 WL 316143, at *2
(S.D.N.Y. Oct. 19, 1992) (quoting 10 Charles A. Wright, et al., Federal Practice and Procedure §
2685, at 423, 425-26 (2d ed. 1983)). The more money involved, the less justification for
entering the default judgment. Id.
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Additionally, “‘the Court may consider whether material issues of fact remain, whether
the facts alleged in the complaint state a valid cause of action, whether plaintiff has been
substantially prejudiced by the delay involved, and whether the default judgment may have a
harsh effect on the defendant.’” Pacific M. Int’l Corp. v. Raman Int’l Gems, Ltd., 888 F. Supp.
2d 385, 393 (S.D.N.Y. 2012) (quoting Stein v. Valentine & Kebartas, Inc., No. 10 CV 2465,
2012 WL 1416924, at *2 (E.D.N.Y. Mar. 15, 2012)), adopting report and recommendation, id. at
389-404; see also Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981) (explaining
that under Fed. R. Civ. P. 55(b)(2), “a district court has discretion . . . to require proof of
necessary facts and need not agree that the alleged facts constitute a valid cause of action”); 10A
Charles A. Wright, et al., Federal Practice and Procedure § 2685 (4th ed. 2008) (Apr. 2023
update) (discussing the aforementioned factors).
The burden is on the plaintiff to establish his entitlement to recovery. See Greyhound
Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992), cert. denied, 506
U.S. 1080 (1993). When a default judgment is entered, the defendant is deemed to have
admitted all well-pleaded allegations in the complaint pertaining to liability, but not as to
damages. Id. Thus, for the purposes of an inquest, the court “accept[s] as true all of the factual
allegations in the complaint, except those claims relating to damages,” and the plaintiff is
“entitled to all reasonable inferences from the evidence offered.” Au Bon Pain Corp. v. Artect,
Inc., 653 F.2d at 65. While “the court must ensure that there is a basis for the damages specified
in a default judgment, it may, but need not, make the determination through a hearing”; instead,
“the court may rely on detailed affidavits or documentary evidence.” Fustok v. Conticommodity
Servs., Inc., 122 F.R.D. 151, 156 (S.D.N.Y. 1988) (collecting cases), aff’d, 873 F.2d 38 (2d Cir.
1989).
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In this case, it is beyond dispute that the defendant is in default since he failed to comply
with this Court’s Order directing him to notify the court by May 14, 2025, as to whether he was
proceeding pro se or intended to obtain counsel. Indeed, since counsel’s motion to withdraw
was granted, more than eight months have passed with no communication from defendant Smith.
He has failed to respond to plaintiff’s Motion for default judgment or to this Court’s Order
inviting him to submit damages papers and/or request an inquest hearing, and has generally
failed to participate in this action, despite being given plenty of opportunity to do so. See Hirsch
v. Innovation Int’l, Inc., 1992 WL 316143, at *1-2 (holding that defendant’s default was “crystal
clear” when it failed to oppose the plaintiff’s motion for an entry of default after “fail[ing] to
submit an answer or otherwise respond to the complaint”).
Given the amount of time that has passed since the case was filed in March 2022 and
since default was entered in July 2025, there is no reason to delay any further. The defendant
has been afforded more than adequate opportunity to respond to the plaintiff’s claims and has
chosen not to take any action. Accordingly, in light of defendant’s apparent lack of interest in
participating in these proceedings, the Court proceeds to consider plaintiff’s Motion for default
judgment.5
B. 	Entry of Default Judgment
Plaintiff alleges a violation of the Copyright Act, 17 U.S.C. §§ 101, et seq. The
Copyright Act is the principal statute protecting against copyright infringement. “The objective
of copyright protection is to encourage the creator of an original work in a medium of expression
5 It should also be noted that the amount of money involved in this case is not great. Therefore, unlike
cases with millions of dollars potentially at stake, here, the Court does not hesitate before entering default judgment.
See Hirsch v. Innovation Int’l, Inc., 1992 WL 316143, at *2 (declining to enter default judgment, in part because
plaintiff’s damages request ran “well into the millions of dollars,” and giving defendant an opportunity to contest the
entry of default).
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. . . by giving the creator the exclusive right ‘to reproduce’ the work, ‘to prepare derivative
works,’ ‘to distribute copies or phonorecords,’ ‘to perform’ the work, and ‘to display’ the work.”
Warner Bros., Inc. v. Dae Rim Trading, Inc., 677 F. Supp. 740, 760 (S.D.N.Y. 1988) (quoting 17
U.S.C. § 106). Although the word “counterfeit” never appears in the Act, Section 501(a) of the
Copyright Act proscribes the unauthorized reproduction and copying of works of an owner
holding an exclusive copyright in an original work of authorship. 17 U.S.C. § 501(a); see Reed
Elsevier, Inc. v. Muchnick, 559 U.S. 154, 157 (2010).
Among the rights conferred upon the holder of a copyright are the exclusive rights to
engage in and to authorize the reproduction of the copyrighted work in copies, 17 U.S.C. §
106(1), to prepare derivative works based on the copyrighted work, 17 U.S.C. § 106(2), and to
distribute copies of the copyrighted work to the public by sale, rental, lease, or other transfer of
ownership. 17 U.S.C. § 106(3); see Microsoft Corp. v. Harmony Computs. & Elecs., Inc., 846 F.
Supp. 208, 210-11 (E.D.N.Y. 1994).
It is well established that in order to prove the elements of a copyright infringement
action, a plaintiff must show: “‘(1) ownership of a valid copyright; and (2) unauthorized
copying of the copyrighted work.’” Ferrarini v. Irgit, No. 21 CV 597, 2022 WL 1739725, at *2
(2d Cir. May 31, 2022) (summary order) (quoting Sohm v. Scholastic Inc., 959 F.3d 39, 48 (2d
Cir. 2020)); accord Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)
(explaining that “[t]o establish infringement, two elements must be proven: (1) ownership of a
valid copyright, and (2) copying of constituent elements of the work that are original”). “‘The
word copying is shorthand for the infringing of any of the copyright owner’s [] exclusive rights
described in § 106.’” Malibu Textiles, Inc. v. Sentimental NY, No. 14 CV 2576, 2016 WL
3620787, at *5 (S.D.N.Y. June 28, 2016) (internal quotation marks omitted) (quoting Arista
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Records, LLC v Doe 3, 604 F.3d 110, 117 (2d Cir. 2010)). Under the Act, “[a]nyone who
violates any of the exclusive rights of the copyright owner as provided by sections 106 through
122 . . . is an infringer of the copyright or right of the author, as the case may be.” 17 U.S.C. §
501.
Turning to the first element required to establish a claim for infringement, courts in this
Circuit have held that “‘[a] certificate of registration from the United States Register of
Copyrights constitutes prima facie evidence of the valid ownership of a copyright.’”
MerchDirect LLC v. Cloud Warmer, Inc., No. 17 CV 4860, 2019 WL 4918044, at *7 (E.D.N.Y.
Sept. 30, 2019) (quoting PaySys Int’l, Inc. v. Atos Se, Worldline SA, Atos IT Servs. Ltd., 226 F.
Supp. 3d 206, 215 (S.D.N.Y. 2016)). In this Circuit, courts have found that the registration
number is sufficient to satisfy the plaintiff’s burden to demonstrate ownership of a valid
copyright in the context of a default. See Lowery v. Fire Talk LLC, No. 19 CV 3737, 2020 WL
5441785, at *2 (E.D.N.Y. June 29, 2020) (noting that “courts in this Circuit have accepted a
registration number only to satisfy [the ownership of a valid copyright] prong in default
judgment cases” and citing cases), report and recommendation adopted by, 2020 WL 5425768
(E.D.N.Y. Sept. 10, 2020); see also Stokes v. Hombres Lounge, Inc., No. 19 CV 3434, 2020 WL
9814097, at *3 (E.D.N.Y. Oct. 7, 2020), report and recommendation adopted (E.D.N.Y. Nov. 20,
2020).
The Copyright Act provides that “the certificate of a [copyright] registration made before
or within five years after first publication of the work shall constitute prima facie evidence of the
validity of the copyright.” 	CJ Prods. LLC v. Snuggly Plushez LLC, 809 F. Supp. 2d 127, 142
(E.D.N.Y. 2011) (quoting 17 U.S.C. § 410(c)); see also Yurman Design, Inc. v. Golden Treasure
Imports, Inc., 275 F. Supp. 2d 506, 514 (S.D.N.Y. 2003). The presumption of validity is
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rebuttable, and it is the defendant’s burden to prove the invalidity of the copyright. See Fonar
Corp. v. Domenick, 105 F.3d 99, 104 (2d Cir.), cert. denied, 522 U.S. 908 (1997).
Here, plaintiff has alleged that it is the exclusive licensee of two valid copyrights – the
215 Registration and the 306 Registration. (SAC ¶¶ 35, 36, 38). Plaintiff has submitted the
Certificates of Registration for both copyrights from the United States Register of Copyrights,
which establishes the ownership of the two copyrights by David Alan Pickelhaupt. (Id., Exs. 1,
2). See Jorgensen v. Epic/Sony Recs., 351 F.3d 46, 51 (2d Cir. 2003) (providing that the
certificate of registration is prima facie evidence of ownership). According to plaintiff’s filings,
the 215 Registration has an effective date of copyright registration of May 3, 2012, and the 306
Registration has an effective date of February 1, 2024. (SAC ¶¶ 35-36). In addition, plaintiff
has submitted the Declaration of David Pickelhaupt, dated August 21, 2025 (“Pickelhaupt
Decl.”6), attesting to ownership of the two copyrights, to the creation of the Study Guide,
including an explanation of what is contained in the Study Guide, and to the fact that he gave
plaintiff an exclusive license to reproduce, publicly perform, display, transmit, and distribute the
copyrighted Study Guide Additions. (Pickelhaupt Decl. ¶¶ 2, 3-14, 15). The license gives
plaintiff the exclusive right to sue for infringement. (Id. ¶ 15). See Davis v. Blige, 505 F.3d 90,
101 (2d Cir. 2007) (holding that exclusive licensees may sue for infringement).
Since defendant has chosen not to participate in this action and plaintiff’s allegation that
it holds a license to enforce two valid copyrights in the Study Guide Additions has not been
challenged, the Court finds that plaintiff has sufficiently alleged ownership of valid copyrights in
the Study Guide Additions, and that the Registration numbers along with the Certificates of
6 Citations to “Pickelhaupt Decl.” refer to the Declaration of David Pickelhaupt, filed August 22, 2025, as
Attachment 1 to plaintiff’s Motion for Default Judgment (ECF No. 92-1).
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Copyright Registration serve as prima facie evidence of the copyrights’ validity. Therefore, the
Court finds that the plaintiff has satisfied the first element required to establish a claim for
infringement.
With respect to the second element needed to establish an infringement claim, plaintiff
must show that “‘(1) the defendant has actually copied the plaintiff’s work; and (2) the copying
is illegal because a substantial similarity exists between the defendant’s work and the protectable
elements of plaintiff’s [work].’” CJ Prods. LLC v. Snuggly Plushez LLC, 809 F. Supp. 2d at
144; see also id. (finding that plaintiffs had demonstrated a likelihood of success on the merits
with respect to their infringement claim where “[a] visual examination of the products at issue . .
. reveals that they are virtually identical”).
Here, plaintiff has alleged that defendant Smith purchased the Study Guide Additions
from plaintiff’s website and proceeded to copy them before posting them on his own website.
(SAC ¶¶ 41-43). Plaintiff has provided evidence of infringement through the Declaration of Mr.
Pickelhaupt, who indicates that he has seen “multiple of Defendant’s study guides where Study
Guide Additions were copied.” (Pickelhaupt Decl. ¶ 23). In addition, plaintiff has attached to
the pleadings sample pages from plaintiff’s Study Guide Additions and from defendant Smith’s
website, displaying essentially the same materials. (Compl. Exs. 1, 2). Plaintiff alleges that the
samples demonstrate “defendant’s unauthorized copying of the copyrighted work” (Pl.’s Mem.7
at 16), and the Court can perceive no meaningful difference between the two. Plaintiff has also
alleged that defendant did not have authorization or permission to reproduce or display the Study
Guide Materials. (Id.) By failing to participate in this action, defendant has essentially conceded
7 Citations to “Pl.’s Mem.” refer to Plaintiff’s Memorandum of Law in Support of Plaintiff’s Motion for
Default Judgment, filed August 22, 2025 (ECF No. 92-11).
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this element of plaintiff’s copyright infringement claim. Thus, plaintiff has satisfied the second
element necessary for demonstrating infringement.
Moreover, the allegations in the Complaint are sufficient to establish that the Study
Guide Materials are “original.” In the Complaint, plaintiff alleges that the Study Guide
Additions are “original creations of David Pickelhaupt.” (SAC ¶¶ 12, 16-19, 27, 30, 31, 34; see
also Pickelhaupt Decl. ¶¶ 2-6, 10, 13). According to David Pickelhaupt, the Study Guide
Additions are the result of his own creative process. (Id.); see Renna v. Queens
Ledger/Greenpoint Star Inc., No. 17 CV 3378, 2019 WL 1061259, at *3 (E.D.N.Y. Feb. 13,
2019) (holding that plaintiff met the minimal burden of originality because the photos derived
from plaintiff’s “choice of timing, location, and subject matter”), report and recommendation
adopted by, 2019 WL 1062490 (E.D.N.Y. Mar. 6, 2019). Thus, the defendant copied original
elements of plaintiff’s work, by using the exact language and elements used by Pickelhaupt and
then posting them on defendant’s website. (SAC ¶ 50); see Feist Publ’ns, Inc. v. Rural Tel. Serv.
Co., 499 U.S. at 361.
Accordingly, the Court finds that, based on the undisputed allegations in the Complaint,
defendant Smith is liable for copyright infringement under the Copyright Act for the
unauthorized reproduction of the Study Guide Additions on his website. It is respectfully
recommended that plaintiff’s Motion for entry of a default judgment be granted with respect to
liability.
II. 	Plaintiff’s Damages
Plaintiff’s allegations in connection with damages, unlike his allegations pertaining to
liability, are not deemed admitted in the context of a default judgment. See Greyhound Exhibit
Group, Inc. v. E.L.U.L. Realty Corp., 973 F.2d at 158. A plaintiff bringing a motion for default
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judgment still has the burden of proving damages, either by an evidentiary hearing or, should the
defendant fail to appear, exhibits submitted by the plaintiff. See id.; see also Fustok v.
ContiCommodity Servs., Inc., 122 F.R.D. at 156 (holding that while “the court must ensure that
there is a basis for the damages specified in a default judgment, it may, but need not, make the
determination through a hearing” (citing Transportes Aereos De Angola v. Jet Traders Inv.
Corp., 624 F. Supp. 264, 266 (D. Del. 1985))). By Order dated October 20, 2025, the Court
directed defendant to submit papers on the question of damages. (ECF No. 96). Defendant
neither submitted papers nor asked for any extensions.
A. 	Legal Standards
“In general . . . an infringer of copyright is liable for . . . the copyright owner’s actual
damages and any additional profits of the infringer . . . ” 17 U.S.C. § 504. However, the
Copyright Act also allows plaintiffs to sue for “statutory damages” in lieu of actual damages and
profits, once an act of infringement has been shown. Island Software Computer v. Microsoft,
413 F.3d 257, 262 (2d Cir. 2005). Statutory damages are available even when there is no
evidence of the defendant’s profits or plaintiff’s losses sustained as a result of the infringement.
See Starbucks Corp. v. Morgan, No. 99 CV 1404, 2000 WL 949665, at *2 (S.D.N.Y. July 11,
2000), report and recommendation adopted by, No. 99 CV 1404 (S.D.N.Y. Aug. 8, 2002). The
statute provides for an award in an amount of “not less than $750 or more than $30,000 as the
court considers just,” for each work where the plaintiff can demonstrate that the copyright has
been infringed. 17 U.S.C. § 504(c)(1). “Under the Copyright Act, there is no need for an
infringer to act willfully for it to be sanctioned.” Island Software Computer v. Microsoft, 413
F.3d at 265. However, when the infringement is willful, enhanced statutory damages ranging to
as much as $150,000 may be awarded. 17 U.S.C. § 504(c)(2).
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It is well-established that plaintiff has the burden to prove damages and establish his
entitlement to recovery. See Greyhound Exhibit Group, Inc. v. E.L.U.L. Realty Corp., 973 F.2d
at 158. Under the Copyright Act, statutory damages serve two purposes: one is compensatory,
and the other is punitive to discourage future violations by defendant and others. Richard Feiner
& Co., Inc. v. Passport Int’l Prods., Inc., No. 97 CV 9144, 1998 WL 437157, at *2 n.13
(S.D.N.Y. July 31, 1998); CJ Prod. LLC v. Your Store Online LLC, No. 11 CV 9513, 2012 WL
2856068, at *3 (S.D.N.Y. July 12, 2012), report and recommendation adopted by, No. 11 CV
9513, 2012 WL 4714820 (S.D.N.Y. Oct. 3, 2012). The trial court has wide discretion in settling
the amount of a statutory damages award. See Fitzgerald v. CBS Broadcasting, Inc., 491 F.
Supp.2d 177, 190 (D. Mass. 2007).
The statute and the cases in this circuit interpreting the statute have made it clear that the
victim of a copyright infringement is entitled to elect damages based on the actual damages
suffered, plus any additional profits, or he may elect statutory damages to be awarded within
certain specified limits. See Twin Peaks Prods., Inc. v. Publications Int’l, 996 F.2d 1366, 1380
(2d Cir. 1993) (permitting plaintiff to elect statutory remedy where actual damages were not
ascertainable); see also Aleshouse v. Ultragraphics, Inc., 754 F.2d 467, 469 (2d Cir. 1985); Engel
v. Wild Oats, Inc., 644 F. Supp. 1089, 1091 (S.D.N.Y. 1986). 	Under the Copyright Act, the
Court, in awarding actual damages, may look to the licensing fee that “the owner was entitled to
charge” for the use of his copyrighted work. On Davis v. The Gap, Inc., 246 F.3d 152, 165 (2d
Cir. 2001). The goal in awarding actual damages is to “compensate the owner for any harm he
suffered by reason of the infringer’s illegal act.” Id. at 159. Actual damages are “what a willing
buyer would have been reasonably required to pay to a willing seller for plaintiffs’ work.” Jarvis
v. K2 Inc., 486 F.3d 526, 533 (9th Cir. 2007).
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When a plaintiff elects statutory damages under the Copyright Act, “damages are
calculated based on the number of copyrighted works and . . . not on the number of incidents of
infringement.” Fitzgerald v. CBS Broadcasting, Inc., 491 F. Supp.2d at 182 (citing Venegas-
Hernandez v. Sonolux Records, 370 F.3d 183, 194 (1st Cir. 2004)). The Second Circuit has
outlined a number of factors for courts to consider in determining the appropriate measure of
damages:
(1)The infringer’s state of mind; (2) the expenses saved, and
profits earned, by the infringer; (3) the revenue lost by the
copyright holder; (4) the deterrent effect on the infringer and third
parties; (5) the infringer’s cooperation in providing evidence
concerning the value of the infringing material; and (6) the conduct
and attitude of the parties.
Bryant v. Media Right Prods., 603 F.3d 135, 144 (2d Cir. 2020).
In addition, if a plaintiff seeks an enhanced award of statutory damages, they must first
prove that defendant acted willfully. To prove willfulness under the Copyright Act, the plaintiff
must show that: 1) “defendant was actually aware of the infringing activity,” or 2) “defendant’s
actions were the result of ‘reckless disregard’ for, or ‘willful blindness’ to, the copyright holder’s
rights.” Island Software Computer v. Microsoft, 413 F.3d at 263; see also Yurman Design, Inc.
v. PAJ, Inc., 262 F.3d 101, 112 (2d Cir. 2001) (holding that willfulness “means that the
defendant recklessly disregarded the possibility that its conduct represented infringement”)
(internal quotations omitted).
B. Analysis
a. 	Statutory Damages
Here, plaintiff seeks an award of $10,000 in statutory damages for defendant’s willful
infringement. (Pl.’s Mem. at 17). Although plaintiff alleges that defendant’s conduct was
willful, plaintiff does not seek enhanced damages. In seeking $10,000 in statutory damages,
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plaintiff contends that that sum is on the “lower-middle end of the statutory damages spectrum
for non-willful infringement, and only one-fifteenth the maximum that may be awarded for
willful infringement . . . ” (Id.)
Turning to the elements outlined by the court in Bryant, with respect to the infringer’s
“state of mind,” courts look to whether the defendant was aware of its infringement yet acted
anyway. See Castillo v. G&M Realty L.P., 950 F. 3d 155, 172 (2d Cir. 2020) (finding that the
defendant “was ‘willing to run the risk of being held liable for substantial statutory damages
rather than to jeopardize his multimillion dollar luxury condo project’”); Stokes v.
MilkChocolateNYC LLC, 681 F. Supp. 3d 226, 238 (S.D.N.Y. 2023) (holding that “[c]opyright
infringement is willful if the plaintiff shows (1) that the defendant was actually aware of the
infringing activity, or (2) that the defendant’s actions were the result of reckless disregard for, or
willful blindness to, the copyright holder’s rights”) (internal quotations omitted).
Although plaintiff is not seeking enhanced damages, plaintiff contends that defendant
Smith’s conduct amounts to willful infringement. (Pl.’s Mem. at 17). First, plaintiff notes that
because defendant has defaulted, plaintiff’s allegations of willfulness are deemed admitted and
may be taken as true. (Id. (citing Hollander Glass Texas, Inc. v. Rosen-Paramount Glass Co.,
Inc., 291 F. Supp. 3d 554, 559 (S.D.N.Y. 2018))). As the court in All-Star Marketing Group,
LLC v. Media Brands Co., noted, “Defendants have defaulted . . . and by virtue of their default
are deemed to be willful infringers.” 775 F. Supp. 2d 613, 621 (S.D.N.Y. 2011) (collecting
cases). Plaintiff further contends that by purchasing the Study Guide from plaintiff’s website
and offering it as a competing guide on his own website beginning in 2013, after the copyright
was registered in 2012, defendant engaged in “either knowing infringement or reckless disregard
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for a copyright holder’s rights” for a lengthy period of time. (Pl.’s Mem. at 17, 18; see SAC ¶¶
51-52).
Moreover, as set forth in the Pickelhaupt Declaration, plaintiff issued a copyright notice
under the Digital Millennium Copyright Act for defendants to take down the infringing work.
(Pickelhaupt Decl. ¶ 17). Defendant, identifying himself as Forest Smith, filed a counter-notice
in September 2021, showing his awareness of the copyright, but refusing to halt his use of it.
(Pickelhaupt Decl., Ex. A). Considering all of these factors, the Court concludes that defendant
had no reasonable excuse to be unaware of his infringement and acted knowingly or in reckless
disregard of plaintiff’s copyright. Accordingly, the Court finds that the “state of mind” factor
weighs in favor of the plaintiff.
With respect to the second, third and fifth Bryant factors, plaintiff argues that by refusing
to participate in this action, defendant has “‘made it impossible to determine [Defendant’s]
profits, quantify any expenses that [Defendant] may have saved by infringing the [copyrighted
work] or assess revenues lost by [Plaintiff] as a result of [Defendant’s] infringement.’” (Pl.’s
Mem. at 18 (quoting Stokes v. MilkChocolateNYC LLC, 681 F. Supp. 3d at 240)). Plaintiff asks
the Court to infer that defendant Smith benefitted financially to some extent from using
plaintiff’s copyrighted work. (Id.)
Some courts have held that when a plaintiff copyright owner is seeking statutory
damages, there is no requirement for him to make a showing of his loss or defendant’s profit.
See Peer Int’l Corp. v. Max Music & Entm’t, Inc., No. 03 CV 0996, 2004 WL 1542253, at *2
(S.D.N.Y. July 9, 2004); see also CJ Prods. LLC v. Your Store Online LLC, 2012 WL 2856068,
at *2 n.4 (holding that a copyright owner may elect statutory damages “regardless of the
adequacy of the evidence offered as to his actual damages and the amount of defendant’s profits,
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and even if he has intentionally declined to offer such evidence, although it was available”).
Other courts have held that “it is obviously incumbent upon the plaintiff to submit a record
sufficient to support the amount of statutory damages that he is seeking,” acknowledging that
“the defendant’s failure to appear limits that which plaintiff can show.” Seelie v. Original Media
Group LLC, No. 19 CV 5643, 2020 WL 136659, at *2 (E.D.N.Y. Jan. 13, 2020); see also
Lowery v. Fire Talk LLC, 2020 WL 5441785, at *3 (holding that plaintiff “still has the ability –
and the responsibility – to present some minimal amount of evidence in support of [their]
damages request”).
In this case, plaintiff has not provided the Court with any information as to what its actual
losses may have been nor any suggestion as to what actual damages plaintiff may have suffered
as a result of defendant’s infringement of the Study Guide Additions. Plaintiff has not even
provided any information as to the fees it charges to users to purchase its Study Guide Additions,
or any information as to volume of sales or suggestions of a decrease in the volume of sales
following the appearance of defendant’s competing site, nor has it pointed to any of the primary
factors for determining an appropriate award of statutory damages in its arguments supporting
the request. Indeed, plaintiff has not even provided comparable cases and amounts awarded for
violations found therein to assist the Court in determining the appropriate award within the
statutory limits of Section 702. (See Pl.’s Mem. at 17-18).
Having reviewed the cases cited by plaintiff, and in the absence of any clearly applicable
guidelines from the Second Circuit, the Court finds the analysis performed by the court in Seelie
instructive. In Seelie, the defendant copied the plaintiff’s photograph from a licensed
publication, removed the credit for the photograph in which the licensee had shown plaintiff’s
name, and published the photograph on its website without permission. Seelie v. The Original
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Media Group LLC, 2020 WL 136659 at *1. In analyzing the relevant factors, the court
explained that plaintiff’s “respectful refusal” to disclose his usual licensing fee “leads [the court]
to draw the inference that it is de minimis,” noting that other courts had considered a multiplier
of a licensing fee in determining a statutory award. Id. at *4. The court further noted that
plaintiff had made no effort to determine the nature of the defendant’s business and its
wherewithal to pay a substantial damage award. Id. Although, as here, the plaintiff in Seelie
argued that defendant’s default was relevant to the issue of willfulness, more important to the
court’s analysis was the removal of the accreditation of the photograph and the fact that, as a
publisher, defendant should be familiar with the copyright laws. Id. In awarding $5,000, the
court in Seelie explained that the most important factor in its analysis as to damages was the
plaintiff’s withholding of his actual licensing fee, leading the judge to conclude that an award of
$5,000 was likely a substantial multiple of the licensing fee and thus would satisfy the dual
purposes of statutory damages. Id. at *5.
As in Seelie, plaintiff here has chosen not to provide any information regarding the
revenue lost as a result of the infringement, nor has it provided the fees charged to purchase the
Study Guide Additions. In the absence of any evidence before the Court indicating the charges
for materials posted on plaintiff’s website, and plaintiff’s volume of sales, there does not appear
to be any basis upon which the Court can evaluate the reasonableness of plaintiff’s requested
statutory damages award. See Myeress v. Elite Travel Grp. USA, No. 18 CV 340, 2018 WL
5961424, at *3 (S.D.N.Y. Nov. 14, 2018) (refusing to award the statutory maximum because of
the court’s inability to determine “anything regarding Defendant’s profits as a result of the use of
[Plaintiff’s copyrighted] Photograph”).
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Thus, in the absence of additional information that would allow the Court to evaluate the
reasonableness of plaintiff’s requested amount of damages, the Court respectfully recommends
that plaintiff’s Motion for default judgment be granted but that the request for $10,000 in
statutory damages be denied without prejudice to plaintiff supplementing its request with further
information relating to its own revenues and losses.8
b. 	Injunctive Relief
Plaintiff seeks a permanent injunction preventing defendant from using, copying, creating
derivative works from, or otherwise infringing, the Study Guide Additions. (SAC
WHEREFORE Clause (A)). A court “may . . . issue an injunction on a motion for default
judgment provided that the moving party shows (1) it is entitled to injunctive relief under the
applicable statute, and (2) it meets the prerequisites for the issuance of an injunction.” Chanel,
Inc. v. Xiao Feng Ye, No. 06 CV 3372, 2007 WL 2693850, at *5 (E.D.N.Y. Sept. 12, 2007)
(quoting Main Events/Monitor Prods. v. Batista, No. 96 CV 5089, 1998 WL 760330, at *1
(E.D.N.Y Aug. 26, 1998)) (alteration in original).
The Court may enter a temporary or permanent injunction “on such terms as it may deem
reasonable to prevent or restrain infringement of a copyright” if plaintiff has shown “(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.” eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006)
(addressing a request for injunctive relief under 17 U.S.C. § 502(a)); see Salinger v. Colting, 607
8 Plaintiff does not appear to be seeking attorney’s fees and costs at this time.
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F.3d 68, 77-78 (2d Cir. 2010) (applying this test to a copyright infringement action). Thus, the
statute authorizes injunctive relief upon a finding of liability.
To obtain a permanent injunction following a default judgment, the plaintiff must
establish: (1) that, without an injunction, the plaintiff will suffer irreparable harm; and (2)
success on the merits. Radisson Hotels Int’l, Inc. v. Radisson Cars & Limo, Inc., No. 14 CV
5927, 2017 WL 1067799, at *3 (E.D.N.Y. Mar. 1, 2017) (citing Municipal Credit Union v.
Queens Auto Mall, Inc., 126 F. Supp. 3d 290, 298-99 (E.D.N.Y. 2015)), report and
recommendation adopted by, 2017 WL 1067766 (E.D.N.Y. Mar. 21, 2017); see also Lyons
P’Ship L.P. v. D & L Amusement & Entm’t, Inc., 702 F. Supp. 2d 104, 118 (E.D.N.Y. 2010).
The plaintiff is also required to establish the threat of a continuing violation. Koon Chun Hing
Kee Soy & Sauce Factory, Ltd. v. Star Mark Mgmt., Inc., 628 F. Supp. 2d 312, 328 (E.D.N.Y.
2009) (citing Motorola, Inc. v. Abeckaser, No. 07 CV 3963, 2009 WL 962809, at *7 (E.D.N.Y.
Apr. 8, 2009)).
Under the Copyright Act, irreparable harm is “presumed where a party has established a
prima facie case of copyright infringement.” Realsongs, Univ. Music Corp. v. 3A N. Park Ave.
Rest. Corp., 749 F. Supp. 2d 81, 93 (E.D.N.Y. 2010). Here, plaintiff put defendant on notice that
defendant was infringing on plaintiff’s copyrights (see Pickelhaupt Decl. ¶ 17), and yet
defendant continued to engage in such activities. (Pl.’s Mem. at 19). Plaintiff argues that not
only has defendant abandoned its defense in this lawsuit, but defendant’s “‘past behavior
suggests that [Defendant] might continue to engage in infringing activities . . . unless enjoined by
the Court.’” (Id. (quoting Rovio Entm’t, Ltd. v. Allstar Vending, Inc., 97 F. Supp. 3d 536, 547
(S.D.N.Y. 2015) (granting injunction))). Plaintiff argues that it faces the continued risk of loss
from potential customers who might choose defendant’s study guide instead of plaintiff’s – “a
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loss [that] is difficult to calculate or replace.” (Pl.’s Mem. at 20). See Stokes v.
MilkChocolateNYC LLC, 681 F. Supp. 3d at 242 (explaining that “‘[c]ourts issue injunctions in
copyright cases because it is notoriously difficult’ to prove the loss of sales due to infringement
and the threat of continuing violations establishes the necessary irreparable harm’” (quoting
Sadowski v. Yeshiva World News, LLC, No. 21 CV 7207, 2023 WL 2707096 (E.D.N.Y. Mar.
16, 2023), report and recommendation adopted by, No. 21 CV 7207, 2023 WL 2742157
(E.D.N.Y. Mar. 31, 2023))). Finally, as plaintiff notes, the balance of hardships favors the
plaintiff in this case because “‘[i]t is axiomatic that an infringer of copyright cannot complain
about the loss of ability to offer its infringing product.’” (Pl.’s Mem. at 20 (quoting WPIX, Inc.
v. ivi, Inc., 691 F.3d 275, 287 (2d Cir. 20017) (quotations omitted))).
In this case, the Court finds that plaintiff has demonstrated that defendant Smith
knowingly infringed upon plaintiff’s copyright and has refused to cease its infringing activities,
thus establishing irreparable harm to plaintiff. Given that there is no question that the balance of
hardships favors plaintiff, the Court respectfully recommends that plaintiff’s proposed injunction
be granted, and that defendants be permanently enjoined from infringing plaintiff’s registered
copyrights.
CONCLUSION
For the reasons set forth above, it is respectfully recommended that plaintiff’s Motion for
default judgment be granted and that plaintiff’s proposed permanent injunction prohibiting
defendant from further infringing upon plaintiff’s copyrights be granted. It is further
recommended that plaintiff’s Motion for statutory damages of $10,000 be denied without
prejudice to renew if plaintiff supplements its request with information that will enable the Court
to evaluate the reasonableness of the request.
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Any objections to this Report and Recommendation must be filed with the Clerk of the
Court, with a copy to the undersigned, within fourteen (14) days of receipt of this Report.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(a) (providing the
method for computing time). Failure to file objections within the specified time waives the right
to appeal the District Court’s order. See, e.g., Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d
Cir. 2008).
Plaintiff is Ordered to serve this Report and Recommendation on defendant, and file
proof of service on the docket immediately thereafter.
SO ORDERED.
Dated: Brooklyn, New York
December 31, 2025
/s/ Cheryl L. Pollak
Cheryl L. Pollak
United States Magistrate Judge
Eastern District of New York
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