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Pope v. Lewis

United States District Court, D. Massachusetts

September 13, 2017

JOSEPH JABIR POPE, Plaintiff,
v.
JOHN D. LEWIS, Defendant.

          REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT

          Judith Gail Dein, United States Magistrate Judge

         I. INTRODUCTION

         Plaintiff 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.[1]

         Although 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.

         Upon 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 costs.

         II. STATEMENT OF FACTS

         Plaintiff's Copyright Registration

         As 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. (Id.).

         Following 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.).

         Allegedly, “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).

         Pope's Relationship with the Defendant

         The 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.).

         Allegedly, 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).

         Lewis' Alleged Unlawful Conduct

         While 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. ¶ 22).

         Pope 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. ΒΆΒΆ 27-28). In addition, Pope claims that Lewis is ...


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