Mapes Motion For Summary Judgment

Case 4:22-cv-00110-JMS-DML Document 17 Filed 09/20/22 Page 1 of 5 PageID #: 129
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
TARA MAPES,
CASE NO. 4:22-cv-00110-JMS-DML
Plaintiff(s),
vs. Magistrate Judge Debra McVicker

Lynch
TOP TIER MARKETERS LLC D/B/A
ARTIFLY, et al.
Defendant(s)
PLAINTIFF TARA MAPES’S MOTION FOR DEFAULT JUDGMENT AGAINST

DEFENDANTS TOP TIER MARKETERS LLC D/B/A ARTIFLY, MEAGAN
BROADWATER, DEAN BROADWATER
Pursuant to Rule 55(a) of the Federal Rules of Civil Procedure, Plaintiff Tara Mapes
( Mapes ) respectfully requests that the Court enter a default judgment, in the proposed form
attached hereto, against Defendants Top Tier Marketers LLC D/B/A Artifly, Meagan Broadwater,
and Dean Broad ater (collectivel Defendants ) for failure to plead or otherwise defend this
action.
In support of this Motion, Mapes states as follows:
1. Mapes filed this action on April 4, 2022. (See Compl., ECF No. 1.)
2. The Clerk issued a Summons to Defendants on April 5, 2022. (See Summons, ECF
No. 3.)
3. The Summons was served upon Defendants on April 6, 2022. (See Return of
Service, ECF No. 7.)
4. More than twenty-one (21) days have passed since Mapes served the Complaint on
Defendants. Defendants were required to answer or otherwise plead by April 27, 2021, and neither
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Mapes nor the Court has extended the time for Defendants to respond. Therefore, Defendants are
in default.
5. On August 8, 2022, Mapes filed her Application for Entry of Default Judgment. (See
ECF No. 12).
6. On August 29, 2022, the Deputy Clerk filed the Entry of Default. (See ECF No. 14).
7. Defendants, by virtue of their default, have admitted liability to Mapes for the claims
alleged in the Complaint, and Mapes is entitled to the relief requested therein. (See Compl., ECF
No. 1.)
8. As a result of their default, Defendants have further admitted to all the facts alleged
in the Complaint, including their liability for enhanced statutory damages under the Copyright Act.
9. Pursuant to § 504 of the Copyright Act, statutory damages can be increased to as
much as $150,000 for willful infringement. Statutory damages at the maximum amount permitted
for willful infringement are warranted here because of Defendants' knowing, intentional, and willful
conduct; efforts to conceal their infringement; and efforts to cover up their infringement.
10. The infringed copyrighted image is one of Mapes s best-sellers year after year, with
average annual revenue from its sale of $13,994. (See Mapes Decl. ¶¶ 7-8, attached as Exhibit A.)
11. In addition, the copyrighted photograph drives traffic to Mapes s ebsite, hich in
turn drives sales of other products, with total sales through Mapes's digital storefront of
approximately $140,000 in 2020 and $120,000 in 2021. (See Mapes Decl. ¶ 9.)
12. Defendants sought to steal those sales for themselves by purchasing digital images
from Mapes and reselling them as their own. Defendants fully understood copyright law (evidenced
by their claim to copyright protection in the stolen images) and simply choose to blatantly infringe
Mapes s copyrights for their own profit. (See Compl., ECF No. 1, ¶¶ 19-20.) Defendants further
2
attempted to conceal their infringement by renaming the file to modify and eradicate the copyright
information, allowing further infringement by purchasers. (See id. at ¶ 21.)
13. Given the yearl sales and importance to Mapes s business, and the fact that the
statutory damages for willful infringement are intended to punish the infringer, Mapes requests
damages in the amount of $150,000. Se 17 U.S.C. § 504(c)(2).
14. Mapes is further entitled to statutory damages pursuant to 17 U.S.C. § 1203(c)(3)(B)
due to Defendants' attempts to circumvent Mapes's copyright protection system. Such damages are
set at between $2,500 and $25,000 per violation, and Defendants admitted to at least seven
violations. (See Compl., Exhibit B, ECF No. 1-2.) Accordingly, Mapes is entitled to statutory
damages between $17,500 and $175,000, which Mapes respectfully submits should be at the higher
end of the range due to the knowing, intentional, and willful conduct of Defendants, as well as the
actions taken to attempt to conceal that conduct.
15. Accordingly, the judgment sought by Mapes is as follows:
A. A Declaration that Defendants have infringed Mapes s copyright;
B. An Order permanently enjoining and restraining Defendants from
manufacturing, distributing, licensing, using, copying, reproducing, displaying, adapting,
offering for sale, and/or selling any product (including, but not limited to, digital downloads)
that infringes Mapes s copyright;
C. An Order permanently enjoining and restraining Defendants from engaging
in any act of cop right infringement of Mapes s copyright;
D. An Order directing Defendants to remove any copyright images or products
using such images from all of Defendants products, as well as from any websites or
promotional materials, whether electronic, printed or other ise, under Defendants direct
3
or indirect dominion and control, and ordering the destruction of all copies thereof under 17
U.S.C. § 503;
E. An Order awarding statutory damages of $150,000 pursuant to 17 U.S.C. §
504;
F. An Order awarding statutory damages of $175,000 pursuant to 17 U.S.C. §
1203;
G. An order awarding pre-judgment and post-judgment interest, and reasonable
attorne s fees pursuant to 17 U.S.C. 5051;
H. An Order awarding Mapes any further relief this Court shall deem just and
equitable.
Dated: September 20, 2022 Respectfully submitted,

/s/ Michelle L. Casper
Michelle Casper
ULMER & BERNE LLP
65 East State Street, Suite 1100
Columbus, OH 43215
Tel.: (614) 229-0036
Fax: (614) 229-0037
[email protected]
Rachael L. Rodman
(application for admission forthcoming)
ULMER & BERNE LLP
65 East State Street, Suite 1100
Columbus, OH 43215
Tel.: (614) 229-0038
Fax: (614) 229-0039
[email protected]
Attorneys for Plaintiff Tara Mapes
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Should the Court grant this Motion and order that Mapes is entitled to attorne s fees and costs,
Mapes ill provide a submission to the Court setting forth the attorne s fees and costs incurred.
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CERTIFICATE OF SERVICE
I hereby certify that on September 20, 2022, a copy of the foregoing was electronically
filed via the CM/ECF System. A copy of this filing will be sent to Defendants via Federal Express
mail.
/s/ Michelle L. Casper

Michelle Casper

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Case 4:22-cv-00110-JMS-DML Document 17 Filed 09/20/22 Page 1 of 5 PageID #: 129

UNITED STATES DISTRICT COURT

vs. Magistrate Judge Debra McVicker

PLAINTIFF TARA MAPES’S MOTION FOR DEFAULT JUDGMENT AGAINST

In support of this Motion, Mapes states as follows:

Service, ECF No. 7.)

ECF No. 12).

9. Pursuant to § 504 of the Copyright Act, statutory damages can be increased to as

information, allowing further infringement by purchasers. (See id. at ¶ 21.)

damages in the amount of $150,000. Se 17 U.S.C. § 504(c)(2).

14. Mapes is further entitled to statutory damages pursuant to 17 U.S.C. § 1203(c)(3)(B)

actions taken to attempt to conceal that conduct.

15. Accordingly, the judgment sought by Mapes is as follows:

A. A Declaration that Defendants have infringed Mapes s copyright;

B. An Order permanently enjoining and restraining Defendants from

manufacturing, distributing, licensing, using, copying, reproducing, displaying, adapting,

that infringes Mapes s copyright;

C. An Order permanently enjoining and restraining Defendants from engaging

in any act of cop right infringement of Mapes s copyright;

D. An Order directing Defendants to remove any copyright images or products

E. An Order awarding statutory damages of $150,000 pursuant to 17 U.S.C. §

F. An Order awarding statutory damages of $175,000 pursuant to 17 U.S.C. §

G. An order awarding pre-judgment and post-judgment interest, and reasonable

attorne s fees pursuant to 17 U.S.C. 5051;

Dated: September 20, 2022 Respectfully submitted,

Attorneys for Plaintiff Tara Mapes

/s/ Michelle L. Casper

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