Creative Photographers, Inc. v. FilterGrade, LLC (D. Mass. 22-cv-10985).

  • July 14, 2023

Creative Photographers sued FilterGrade in June 2022, accusing FilterGrade of infringing the copyrights of two photographs for which Creative was the licensing agent.  Creative attempted to serve the complaint on FilterGrade’s registered agent at his home on three occasions, the last time affixing the summons and the complaint on his front door, as well as mailing a copy to the address by first class mail.  Creative sought default judgment when FilterGrade failed to answer the complaint.  Judge Talwani denied the motion for default, finding that the complaint had not been properly served, because the address to which the summons had been left was not at that time the registered address of the agent.  Apparently, the registered agent had been living with his mother and her address was the one identified by FilterGrade in its corporate filings.  The agent apparently had moved to the address at which the complaint had been left – the neighbors indicated that he lived there, and a day after the leaving of the complaint FilterGrade filed a Statement of Change of Resident Office Address to indicate that address.  However, at the time of purported service, the complaint was left at the incorrect address.  Judge Talwani did find that FilterGrade’s failure to promptly update the address of its registered agent established good cause to extend the time for service, which otherwise would have passed.  Creative then effectuated service in person on the registered agent, and again FilterGrade failed to answer the complaint.

Judge Talwani granted Creative’s motion for default judgment, finding that the well-pled facts of the complaint stated a claim for copyright infringement and that the complaint had been properly served.  She noted that a failure to answer the complaint serves as an admission of all well-pled factual allegations therein, and that willfulness may be inferred from the failure to appear and defend the action.  She further determined that the complaint stated sufficient facts to find the infringement to be willful, particularly given that FilterGrade is a “media company with knowledge of copyright law.”  She granted Creative’s request for $30,000 in statutory damages, noting that the complaint had put FilterGrade on notice that this amount was contemplated and given that it is far less than the $150,000 maximum available for willful infringement.  She also awarded Creative $4,153.30 in fees and costs, the amount requested.  She denied Creative’s request for a permanent injunction, finding that the photographs had already been taken down from FilterGrade’s website and that Creative had not alleged a likelihood of future infringement.

This case highlights the danger of not responding to a complaint.

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