United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
parties do not dispute liability in this matter; defendant
concedes that he violated 47 U.S.C. § 605. (Docket #16).
They have, pursuant to the Court's schedule, briefed the
issue of damages. (Docket #18, #19, and #20). In light of
those arguments, the Court will grant judgment in favor of
the plaintiff in the amount of $14, 920.
relevant facts are brief. The defendant showed a pay-per-view
boxing match, distribution for which was licensed to the
plaintiff, without the plaintiff's permission. The fight
was shown in the defendant's restaurant on May 4, 2013.
There was no cover charge for entering the establishment and
the defendant did not advertise the broadcast. There have
been no repeated violations by this defendant and he avers
that he made no increased profit that night due to showing
the fight. The plaintiff's investigator, viewing the
defendant's unauthorized display, counted a maximum of
thirty-nine patrons in the restaurant during the fight. If
the defendant had contracted with the plaintiff to show the
fight, the plaintiff's fee based on the size of the
establishment would have been $2, 200.
Court applies the per head test for calculating statutory
damages. See J & J Sports Prods., Inc. v. ARH
Enterprises LLC, No. 13-CV-1383-JPS, 2014 WL 4656118 *3
(E.D. Wis. Sept. 16, 2014); Joe Hand Promotions, Inc. v.
Ewer, No. 09-CV-612, 2009 WL 3269658 *3 (E.D. Wis. Oct.
8, 2009). The Court previously used a $55 per head figure as
the basis for its calculation, but Magistrate Judge Nancy
Joseph updated that figure to $80 to account for
inflation. Using the investigator's head count of
thirty-nine patrons, at $80 per head, the statutory damage
award is $3, 120.
defendant contends that the award should instead be limited
to the contract rate of $2, 200. This approach, setting the
award at a flat sum based on the rate the provider would
charge, is an alternative to the per head test. Joe Hand
Promotions, Inc. v. Hibbard, No. 15-3102, 2015 WL
5294672 *3 (C.D. Ill. Sept. 9, 2015). The per head test is
used, however, when the number of patrons in known. ARH
Enterprises, 2014 WL 4656118 at *3. The Court will not
permit the defendant to, in essence, obtain the benefit of
paying the appropriate rate after he has already violated
plaintiff's rights. Id. (finding it more
appropriate to award the higher per head calculation, $4,
785, rather than the rate award, which was also $2, 200).
plaintiff further requests that it be awarded enhanced
damages based on the willfulness of the defendant's
violation. As this Court noted in ARH Enterprises:
To arrive at an enhanced damages calculation, courts may
consider factors such as the number of violations, the
defendant's illegal monetary gain, the plaintiff's
actual damages, whether the defendant advertised the event,
and whether the defendant charged a cover to attend its
showing of the event. Broadway Baby, 2013 WL 238850,
at *4 (citing Ewer, 2009 WL 3269658, at *1;
Kaczmar, 2008 WL 4776365, at *2). The Court should
also consider the deterrent effects of an enhanced award and
impose damages that discourage similar activity but that do
not seriously impair the viability of the business.
Broadway Baby, 2013 WL 238850, at *4 (citing
Ewer, 2009 WL 3269658, at *1; Kaczmar, 2008
WL 4776365, at *2).
ARH Enterprises, 2014 WL 4656118 at *3. Based on
similar facts, this Court and others have found that
multiplying the base award by three provides sufficient
deterrence. Id.; J & J Sports Prods., Inc.
v. Broadway Baby of Wisconsin, No. 12-CV-405, 2013 WL
238850 *4 (E.D. Wis. Jan. 22, 2013); J & J Sports
Prods., Inc. v. Ithier, No. 09-CV-1126, 2010 WL 2490674
*2 (E.D. Wis. June 17, 2010); Ewer, 2009 WL 3269658
at *3. The defendant stresses that he had no direct role in
showing the fight; his employees went “rogue” in
doing so. This position has no merit. The defendant is
responsible for what his employees do in his establishment,
and if they go “rogue, ” he bears any attendant
cost. Applying the tripling factor to the base amount of $3,
120, the enhanced damage award comes to $9, 360.
defendant does not contest the appropriateness of the
plaintiff's desired awards on attorneys' fees or
costs. Adding those amounts, totaling $2, 440, to the
statutory and enhanced awards yields a final figure of $14,
920. The plaintiff is entitled to judgment in that amount.
IT IS ORDERED that the Clerk of the Court shall enter
judgment in this action against the defendant and in favor of
the plaintiff in the amount of $14, 920; and
FURTHER ORDERED that this action be and the same is hereby
Magistrate Joseph applied the new
figure because the $55 amount yielded damages less than the
contract rate. J & J Sports Productions, Inc. v.
Garnica, Nos. 14-CV-101 and 14-CV-103, 2015 WL 248013 *4
(E.D. Wis. Jan. 20, 2015). Here, a $55 per head figure would
yield damages of $2, 145, less than the contract rate of $2,