United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION
FOR DEFAULT JUDGMENT
Gail Dein, United States Magistrate Judge
Joseph Jabir Pope (“Pope”), an inmate at
MCI-Norfolk, claims to be the sole owner of the copyright to
a documentary film entitled “Word From The Joint”
(the “motion picture/video” or the
“film”). On November 24, 2014, he brought this
action pro se against his former friend and fellow
inmate, John D. Lewis (“Lewis”), claiming that
Lewis infringed upon his copyright and otherwise violated his
rights by posting the motion picture/video on the internet
and promoting the work as his own.
Lewis responded to Pope's complaint, he subsequently
failed to appear in court, notify the court of his
whereabouts, or demonstrate an intent to engage in the
defense of this action. On December 1, 2016, Pope filed a
motion for the entry of default. (Docket No. 47). Default was
entered on January 27, 2017. (Docket No. 52). On February 14,
2017, Pope filed a motion for default judgment (Docket No.
55) in the amount of $36, 000 and for a permanent injunction
and costs. Lewis did not respond to the motion.
considering Pope's motion for a default judgment and the
accompanying affidavit, this court entered an order on May 4,
2017 (Docket No. 57) in which it concluded that because Pope
had not submitted any evidence in support of his claim for
actual damages, the affidavit he submitted with his motion
for default judgment appeared too speculative to support a
final default judgment. Accordingly, this court ordered Pope
to provide further evidence of damages. Specifically, this
court ordered that to the extent Pope wished to pursue actual
damages, he should include any available documents that
substantiated his claim, and to the extent that he wished to
pursue statutory damages, he should indicate which factors he
would like the court to consider in calculating an
appropriate award and explain why those factors support a
claim in the case. See Id. See also Fed.R.Civ.P.
55(b); KPS & Assoc., Inc. v. Designs By FMC,
Inc., 318 F.3d 1, 19-21 (1st Cir. 2003) (describing the
need for evidence to establish damages even where defendant
has been defaulted). Pope filed a responsive affidavit on May
18, 2017, in which he asserted that he would like to pursue
statutory damages in the amount of $50, 000. (See
Docket No. 58). For all the reasons detailed herein, this
court recommends to the District Judge to whom this case is
assigned that Pope be awarded $5, 000 in statutory damages,
injunctive relief as described below, and his court fees and
STATEMENT OF FACTS
described above, the plaintiff is presently incarcerated at
MCI-Norfolk. (Compl. (Docket No. 10) ¶¶ 1, 4).
Previously, however, he was housed at the Old Colony
Correctional Center in Bridgewater, Massachusetts
(“OCCC”), where he took part in the development
of the film at issue in this litigation. (Id. ¶
5). According to Pope, he and a number of other prisoners
came up with the idea of making a motion picture/video called
“Word From The Joint” in response to the gang
violence that was plaguing communities in and around Boston.
(See Id. ¶ 6). The purpose of the project was
to educate gang members about the harsh realities of prison
life, with the hope of persuading them to follow a different
path and avoid criminal conviction. (See id. ¶
7). After obtaining approval from the Commissioner of
Correction, Pope allegedly took responsibility for writing
both the script and the music for the motion picture/video.
(Id. ¶¶ 8-9). He also played a leading
role in the motion picture/video, along with other inmates
from OCCC. (Id. ¶ 9). Pope claims that filming
was conducted, and the motion picture/video was completed,
with assistance from an outside production company.
the project's completion, Pope allegedly sought and
obtained a copyright registration for the motion
picture/video. (Id. ¶ 10). Pope claims that the
copyright is evidenced by Certificate of Registration Number
PAU1-894-352. (Id.). He also claims that the
Certificate establishes his rights as the owner of the work
“Word From The Joint.” (Id.).
“Word From The Joint” has been entered in
numerous film festivals, and has won a number of awards,
including a CINE Golden Eagle award from the Council of
International Non-Theatrical Events, a Gold Apple from the
National Educational Film Festival, and a Special Merit Award
from the Prozed Pieces Film Video Festival. (Id.
¶ 11). It has also been marketed to educational
institutions, law enforcement and corrections personnel, and
is available for sale or as a rental. (Id. ¶
12; Compl. Ex. a). The record indicates that Pope previously
sued the film's co-producer, Anthony Tenczar, for falsely
representing that the production was his alone. (Compl. at p.
3). The plaintiff claims that his lawsuit against Tenczar
settled, and that he has since received royalties from sales
and rentals of the motion picture/video. (See id.;
Compl. Ex. c).
Relationship with the Defendant
defendant, Lewis, is a private citizen who resides in
Massachusetts. (Compl. ¶ 2). Pope met him, and allegedly
became good friends with him, while the parties were both
incarcerated at MCI-Norfolk. (Id. ¶ 13). Pope
claims that he advised Lewis, who is slightly younger than
the plaintiff, and tried to prepare him to lead a productive
life following his release from prison. (Id.). He
further claims that Lewis agreed to follow Pope's
instructions with respect to the motion picture/video
“Word From The Joint, ” and to protect the
plaintiff's interests in the film, after his return to
the community. (Id.).
Lewis left MCI-Norfolk in 2007 and continued to reside in the
Boston area. (Id. ¶ 14). He also assisted Pope
with his efforts to promote and distribute “Word From
The Joint.” (See id. ¶¶ 15-18). For
example, Lewis allegedly assisted the plaintiff by
transferring the motion picture/video from an analog format
to a digital format. (Id. ¶ 15). He also
complied with Pope's requests to deliver the film to
various groups and individuals. (Id. ¶ 16). At
some point, however, Lewis allegedly told the plaintiff not
to call him anymore, and that any necessary contact should
only occur by mail. (Id. ¶ 18).
Alleged Unlawful Conduct
these activities were occurring, Pope was allegedly
attempting to finish a book and create a website aimed at
promoting and generating sales of his creative works,
including “Word From The Joint” and the
accompanying music. (See id. ¶¶ 17-20).
Pope claims that he retained Leonard Swafford-Donald, the
President of an entity known as “Master Builders
Publications, ” to assist him in this endeavor.
(Id. ¶ 19). During the course of his work on
the website, Mr. Swafford-Donald allegedly discovered that
“Word From The Joint” had been uploaded to
YouTube under the name John D. Lewis. (Id. ¶
21; Compl. Ex. b). Mr. Swafford-Donald notified the plaintiff
of his discovery in about late October 2014. (Id.
claims that he asked Mr. Swafford-Donald to contact Lewis,
instruct him to take the film down from YouTube within a
week, and pay the plaintiff a fee of $250. (Id.
¶ 23). Allegedly, Mr. Swafford-Donald spoke with Lewis
as requested, and Lewis informed him that he would contact
Pope directly. (Id. ¶ 24). According to the
plaintiff, however, Lewis never contacted him. (Id.
¶ 25). Nor has he removed “Word From The
Joint” from YouTube. (Id.). Pope claims that
Lewis' actions are infringing upon his copyright, and are
depriving him of his rights to the film and the accompanying
music. (See id. ¶¶ 27-28). In addition,
Pope claims that Lewis is ...