Prepared Food Photos Inc v. Jaber

         UNITED STATES DISTRICT COURT                               
         EASTERN DISTRICT OF WISCONSIN                              

PREPARED FOOD PHOTOS, INC.,                                         

          Plaintiff,                                                
                                      Case No. 22-CV-642-JPS-JPS    
v.                                                                  

SHARIF JABER and NOFAL, LLC,                  ORDER                 
doing business as FOOD TOWN                                         
MART,                                                               

          Defendants.                                               

1.   INTRODUCTION                                                    
    In this case, Plaintiff Prepared Food Photos, Inc. (“Plaintiff”) accused 
Defendants Sharif Jaber (“Jaber”) and NOFAL, LLC doing business as Food 
Town Mart (“NOFAL”) (together, “Defendants”) of infringing its copyright 
on a single photo of raw pork chops. See generally ECF No. 19. Plaintiff 
specifically alleged that the infringement occurred when NOFAL posted 
the  subject  photo  on  its  business  Facebook  page,  and  that  Jaber  was 
vicariously liable for that infringement because Jaber, “[a]s the manager 
and sole member of NOFAL,” could control its infringing acts, failed to do 
so, and ultimately profited from the infringement.  Id. at 6, 8–9.   
    The case came before the Court for a jury trial on October 28 and 29, 
2024. ECF No. 48. The jury found, in relevant part, that:            
 •  NOFAL infringed upon the copyrighted material of Plaintiff;     
 •  Jaber did not vicariously infringe upon the copyrighted material of 
    Plaintiff;                                                      
 •  The sum of $200.00 fairly and reasonably compensates Plaintiff for 
    its actual damages;                                             
 •  The sum of $1,000.00 fairly and reasonably compensates Plaintiff for 
    its statutory damages;1 and                                     
 •  NOFAL’s infringement of Plaintiff’s copyrighted material was not 
    willful.                                                        
ECF No. 50. Plaintiff elected an award of $200.00 in actual damages, ECF 
No. 52 at 1, which the Court incorporated into its final judgment, ECF Nos. 
53 at 3 and 54. The Court also dismissed with prejudice Plaintiff’s claim of 
vicarious liability against Jaber. ECF No. 54 at 2.                  
    Plaintiff now moves the Court to amend or alter its judgment with 
respect to both the jury’s award of actual damages and the jury’s finding 
that Jaber was not vicariously liable for NOFAL’s infringement, or, in the 
alternative, for a new trial. ECF No. 56. The motion is fully briefed. ECF 
Nos. 59, 60. For the reasons stated herein, the motion will be denied in all 
respects.                                                            
2.   FACTUAL BACKGROUND                                              
    The Court has compiled the following recitation of facts primarily 
from  the  evidence  presented  and  testimony  elicited  at  trial.2  Where 

    1The  jury  was  instructed  to  find  both  actual  and  statutory  damages 
amounts, subject to Plaintiff’s later election. See ECF No. 49 at 16–18; 17 U.S.C. 
§ 504(a) (“[A]n infringer . . . is liable for either . . . the copyright owner’s actual 
damages . . . or . . . statutory damages . . . .”).                  
    2As explained below, the legal standards for the relief that Plaintiff seeks 
require close examination of what occurred at trial and what evidence the jury 
considered in arriving at its verdict. But the parties, inexplicably, did not bother to 
cite to the trial transcripts at all in preparing and briefing Plaintiff’s post-trial 
motion. See, e.g., ECF No. 56 at 6 (Plaintiff’s brief summarizing the trial in a single 
paragraph  with  no  citations  to  the  transcripts).  This  sent  the  Court  on  an 
archaeological dig through the record—thankfully a short one, given the brevity 
of trial—to pinpoint what the parties presumably believe are the most relevant 
additional context is needed and the facts are undisputed, the Court cites to 
other materials in the record.                                       
    2.1  Background                                                 
    Plaintiff owns a valid copyright in a photo of raw pork chops. ECF 
No. 46 at 1 (stipulation as to ownership). The photo was taken in 1997, but 
the copyright was not registered until 2017. ECF No. 57 at 51, 56.   
    On September 28, 2020, the photo was posted to a Facebook page  
with the name of “Villard Foodtown.” ECF No. 57 at 59, 111–12; ECF No. 
19 at 5 (screenshot of post); ECF No. 51 (post admitted as exhibit at trial). 
Plaintiff alleged, and the jury found, that this photo was posted there 
without Plaintiff’s permission and in infringement of its copyright. See 
generally ECF No. 19; ECF No. 50 at 1.                               
    The  Facebook  page  is  affiliated  with  a  small,  family-owned 
neighborhood grocery store. At the time that Plaintiff’s photo was posted 
to the Facebook page, Jaber owned NOFAL, the business entity that owned 
and operated the grocery store. ECF No. 57 at 123; ECF No. 56-2 at 2. As 
explained immediately below, the evidence presented at trial showed no 
factual dispute as to Jaber’s ownership of NOFAL, nor was there a genuine 
dispute that the Facebook page was operated on behalf of NOFAL and the 
grocery  store.  As  detailed  infra  Section  2.2,  however,  the  jury  heard 
differing testimony and evidence as to whether Jaber himself knew about 
the Facebook page, or knew what NOFAL employees (who are Jaber’s sons) 
were doing with the Facebook page, at the time of the infringement.  


portions. This is an inefficient use of the Court’s time and resources, and a highly 
questionable choice by counsel.                                      
    NOFAL, a limited liability company, owns and operates the store 
located at 3217 Villard Avenue in Milwaukee, Wisconsin. ECF No. 57 at 123; 
ECF No. 19 at 4. Jaber has owned NOFAL since 2017, when he bought the 
business from his brother, Faraj Jaber (“Faraj”). ECF No. 57 at 124, 167–69; 
ECF No. 36-2 at 12. Jaber testified that he is “the only person that has control 
over [its] business activities.” ECF No. 57 at 123; ECF No. 36-2 at 17 (Jaber 
stating  at  deposition  that  he  has  “exclusive  control  over  the  business 
activities of NOFAL LLC”). Jaber’s sons Nofal and Amjad Hamed (“Nofal” 
and “Amjad”) were employees of NOFAL and worked at the grocery store; 
both worked there before and at the time of the infringement.  ECF No. 57 
at 101–03, 138–39. Nofal stopped working there in 2021, id. at 136, 138, while 
Amjad was still working there as of the time of trial, id. at 103.   
    The grocery store was formerly known as Villard Food Town. Id. at 
169. When Jaber bought NOFAL in 2017, he changed the legal, doing-   
business-as name of the grocery store to Food Town Mart. Id. However, 
some signage with the former name Villard Food Town remained outside 
the store even after the legal name change. Id.                      
    Nofal  ran  a  Facebook  page  with  the  name  “Villard  Foodtown” 
beginning in 2010, and Amjad was added as a registered user for this page 
in 2013. Id. at 107–08; see also ECF No. 36-5. Amjad took primary control of 
the Facebook page when Nofal stopped working at the grocery store in 
2021. ECF No. 57 at 108, 136. Amjad represented that Nofal still made some 
posts on the Facebook page after he stopped working at the grocery store, 
though. Id. at 108.                                                  
    As noted above, the subject photo was posted to this Facebook   
page—with the  name “Villard Foodtown”—in September 2020; Amjad      
testified that he created the post. Id. at 112.3 Defendants’ counsel objected to 
the introduction of the screenshot of the Facebook page on the basis that 
that “Villard Food Town is not on trial here,” but the Court overruled the 
objection. Id. at 60. Indeed, Jaber appeared to concede that, at the time of 
the infringement, the Facebook page was functionally Food Town Mart’s 
page, despite still being named “Villard Foodtown.” Id. at 129 (“Q [by 
Plaintiff’s counsel]: And you heard [Amjad] say that this is the Facebook 
page that he was running on behalf of Food Town Mart; correct? A [by 
Jaber]: Yes. Q: And do you agree, as you sit here today, this is the Facebook 
page that was being run by Food Town Mart? A: Yes.”). Therefore, it does 
not appear that Defendants genuinely disputed that the page was affiliated 
with NOFAL.                                                          
    Plaintiff discovered the infringing post in October 2021. ECF No. 57 
at 58–59. At some point thereafter, the name of the Facebook page was 
changed to Food Town Mart. Id. at 71, 121. Additionally, the post with 
Plaintiff’s photo was taken off the Facebook page at some point after this 
lawsuit commenced. Id. at 71, 120.                                   
    2.2  Testimony Related to Jaber’s Knowledge of the Facebook     
         Page, the Lawsuit, and Store Activities                    
    Jaber acknowledged before the jury that, as of the time of trial, he 
knew about the Facebook page and that it was affiliated with Food Town 

    3Amjad testified that the post would have reached about 1,000 Facebook 
followers. ECF No. 57 at 191. Amjad walked the jury through a demonstration of 
how he found Plaintiff’s photo on Google and used it in making the post. Id. at 
186–89, 192–200. This demonstration showed that there was no “trademark,” 
“copyright identification,” or “watermarking” on the photograph as a Google 
result. Id. at 189. The Google result included a notice that “[i]mages may be subject 
to  copyright”  and  linked  to  Plaintiff’s  website,  which  included  pricing  and 
subscription information. Id. at 194–98.                             
Mart (and therefore NOFAL). See id. at 129. However, he testified that he 
only became aware of the Facebook page and its affiliation with NOFAL 
after he and NOFAL were named as Defendants in the operative complaint 
in  February 2023.  Id. at 132;  id. at 144–45 (restating Jaber’s deposition 
testimony that “in February, 2023, [his] sons disclosed to [him] for the first 
time that this Facebook page belonged to [his] store”); id. at 171–72 (“Q [by 
Defendants’ counsel]: Were you ever made aware that there was . . . any 
Facebook page for Villard Food Town? A [Jaber]: No. . . . Q: At any point in 
time . . . up until the time that you were sued, did you . . . ever physically 
see the Facebook page? A: No, sir.”). Jaber further denied having created or 
directed anyone else to create the Facebook page, having “done anything 
as it relates to [NOFAL], LLC . . . on the internet,” or having “done anything 
as it relates to any social media or Facebook pages as it relates to Food 
Town.” Id.                                                           
    Amjad—whom Plaintiff called to testify prior to calling Jaber—  
similarly stated that Jaber “didn’t know” that the page existed or that 
Amjad and/or Nofal were making posts on the page until February 2023, 
“after he got a lawsuit for a Facebook page.” Id. at 115–16 (“I never told him 
that I was posting on Facebook.”). Amjad also stated that Jaber never gave 
him “any instructions with respect to how to run this Facebook page” or 
“what to post or what not to post.” Id. at 114, 116. The infringing post 
included information about pricing; Amjad testified that he would have 
gotten price information either from Jaber or the grocery store’s butcher, 
but that he did not recall who gave him the pricing information included in 
the post. Id. at 112–13; see also id. at 172 (Jaber testifying that he would be 
able to tell Amjad product pricing information “on any particular day” but 
would not ask why Amjad was asking that question).                   
    Plaintiff questioned witnesses about Jaber’s responses to discovery 
requests and prior deposition testimony from August to October 2023. On 
these  occasions,  Jaber  denied—on  his  own  behalf  and  as  NOFAL’s 
corporate  representative—knowing  about  the  Facebook  page  or  the 
infringing  post.  Id.  at  125–27;  145–51.  Plaintiff  emphasized  that  these 
positions during discovery were inconsistent with Jaber’s position at trial 
that he knew about the Facebook page as of February 2023. See id. at 163 
(Plaintiff’s counsel arguing that “[i]t’s a factual dispute issue as to whether 
he knew or not and when he knew it. At one point [Jaber] testified I knew 
in February, 2023. Yet in October of 2023, in August of 2023, he’s saying, no, 
I didn’t.”).                                                         
    Plaintiff’s  intellectual  property  director,  Rebecca  Jones  (“Jones”) 
testified  that,  after  discovering  the  infringing  Facebook  post,  Plaintiff, 
through counsel, sent an “infringement letter” ostensibly to Defendants, 
dated November 22, 2021. Id. at 62–63. However, the letter was sent to 
“Villard Food Town, LLC, . . . Attention Faraj Jaber,” which are “not the 
defendants in this case”4 and which were no longer the owner of the LLC 
or the doing-business-as designation of the store at that time. Id. at 63; see 
also id. at 89–90 (Jones confirming that no notice was sent to Jaber, either 
personally or as president of NOFAL). Further, the letter was sent to “3127 
West Villard Avenue,” which is not the correct address for the grocery 
store, id. at 91; Jones stated that she pulled this incorrect address from the 
Facebook page. Id. at 63–64, 70–71, 91. Jones indicated that she believed that 
the letter was delivered and received based on “the actions of the defendant 

    4Villard Food Town was the original defendant but was removed from 
subsequent amended complaints. ECF Nos. 1, 9, 19.                    
after the letter was sent”—taking the photo down and changing the name 
of the page, see id. at 121—but admitted that she did not have proof of 
delivery. Id. at 73–74.                                              
    Jaber  testified  that  he  did  not  receive  the  November  2021 
infringement letter or any “letter like that at any point in time prior . . . to 
being sued.” Id. at 173–74. He  stated that he does not know how the 
Facebook post was removed and the page name changed, and that he never 
told Amjad or Nofal to remove the post.  Id. at 176–78. Amjad denied 
removing the post or changing the name of the page. Id. at 120–21. He 
further stated that the post with Plaintiff’s photo pertained to a time-limited 
sale but that it was not his typical practice to take a post down after the sale 
that it advertised had expired. Id. at 204.                          
    Plaintiff attempted to impeach Jaber by referencing his deposition 
testimony and contrasting it with Amjad’s deposition and trial testimony, 
see  id.  at  31–32  (Plaintiff’s  opening  statement  discussing  intention  to 
impeach  Jaber),  but  the  Court  sustained  objections  to  these  lines  of 
questioning and excluded from evidence the photographs that Plaintiff 
offered to support its questioning. For example, Plaintiff attempted to elicit 
testimony from Amjad that hookahs were sold in the grocery store, a fact 
that Jaber denied earlier in the discovery phase, and that his father was 
“familiar with the products that are sold at the store.” Id. at 117–18; ECF No. 
36-2 at 30–31. Similarly, Plaintiff unsuccessfully attempted to get Amjad to 
testify about the layout of the store since Jaber denied in the discovery 
phase that some photographs of the store on the Facebook page in fact 
depicted the store. ECF No. 57 at 118–19; ECF No. 36-2 at 34–35.     
    Jaber said that he sells pork chops in his store “every week,” and 
confirmed that when “NOFAL . . . makes money, that’s profit that goes to 
[him]”  and  that  there  are  “no  other  partners  that  get  distributed  the 
money.” ECF No. 57 at 124, 181.                                      
    2.3  Testimony Related to Damages                               
    Jones offered testimony relevant to Plaintiff’s damages. Plaintiff 
maintains a library of about 18,000 stock photos of food; it employs food 
stylists and photographers to create the images and engages attorneys to 
copyright the images. Id. at 39–40. Plaintiff then licenses these photographs 
to  customers—grocery  stores  and  food  delivery  services  as  well  as 
marketing and advertising agencies—on a subscription model. Id. at 42–46. 
The  cost  of  a  subscription  starts  at  $999  a  month  for  a  minimum 
subscription term of twelve months; a subscriber who pays these fees may 
access Plaintiff’s entire library of 18,000 images. Id. at 44–45.    
    It is not possible to license a single photo from Plaintiff; in order to 
access one  photo, a customer must enter into at least a  twelve-month 
subscription.  Id. at 45.  The  purpose of this  twelve-month subscription 
requirement is to prevent a user from “download[ing] the entire library and 
tak[ing] all 18,000 images” and then “cancel[ing] tomorrow.” Id. at 44–45. 
Jones testified that the advantage Plaintiff offers is “brand identity” and 
“semi-exclusivity[,] . . . because as part of the terms of use . . . , [customers] 
have  to  provide  [Plaintiff]  with  a  list  of  clients,”  which  Plaintiff 
“monitor[s]” to ensure that customers in the same area are not using the 
same photographs. Id. at 45 (also discussing Plaintiff’s efforts to prevent 
“market saturation”).                                                
    In the November 2021 infringement letter, Plaintiff demanded that 
Defendants pay Plaintiff $30,000 in compensation for unauthorized use of 
the photo and immediately cease use of its photo on the Facebook page. Id. 
at 66, 68. Plaintiff’s rationale for asking for $30,000 was based on (1) the cost 
of its subscription, (2) the length of time that Plaintiff’s photo was on the 
Facebook page, and (3) an additional penalty for unauthorized use. Id. at 
68. Under Plaintiff’s subscription model—$999 a month for a minimum of 
12 months—Defendants owed $11,988 for each year in which the infringing 
photo appeared on its Facebook page. Id. at 68–70. The photo appeared on 
the page from September 2020 through at least November 2021—i.e., over 
the span of two years—which under Plaintiff’s subscription model would 
have required two twelve-month subscriptions, totaling roughly $24,000. 
Id. Plaintiff asked for $30,000, “more than what [Defendants] would have 
had  to  pay  legally”  if  they  used  Plaintiff’s  photo  with  authorization, 
because Plaintiff “do[esn’t] believe that somebody who steals an image 
should pay the same as somebody who licenses it properly.” Id. at 68, 70 
(“You’re punished by having to pay more.”).                          
    When asked on cross-examination to explain her statement in a   
declaration  that  the  unauthorized  use  of  a  single  one  of  Plaintiff’s 
photographs “greatly reduce[s] the value of the library,” Jones testified that  
    an unauthorized use goes against what we are telling our        
    licensed paying subscribers they are receiving, which is the    
    enforcement of ensuring that only our subscribers are using     
    our  photos,  we  have  control  over  who  and  where  those   
    photos are being used.                                          
Id. at 94–95. Jones disagreed that “[t]he value of the library is only reduced 
if someone is aware that . . . that photograph is a copyrighted photo.” Id. at 
95. Jones further disagreed that Defendants’ counsel’s calculation—that  the 
photo  in  the  post  represented  about  “.0005  percent”5  of  the  value  of 
Plaintiff’s photo library—reflected the actual value of the photo. Id. at 94. 

    5Actually, one photo out of 18,000 is about .005 percent of the library.  
Defendants  attempted  to  impeach  Jones  by  pointing  out  inaccurate 
statements in her declaration as to who sent the infringement letter, to 
whom  it  was  sent,  and  whether  any  follow-up  emails  were  sent  to 
Defendants. Id. at 89–90.                                            
    2.4  Jury Instructions and Verdict                              
    The Court instructed the jury that, in order to find that “Jaber is 
[vicariously]  liable  for  NOFAL[’s]  .  .  .  infringement  of  [Plaintiff’s] 
copyright,” Plaintiff had to “prove, by a preponderance of the evidence,” 
that                                                                 
    1.  NOFAL . . . infringed [Plaintiff’s] copyright, . . . ;      
    2.  . . . Jaber profited from [NOFAL’s] infringement . . . ; and 
    3.  . . . Jaber had the right and ability to stop or limit the  
      infringement by NOFAL . . . .                                 
ECF No. 49 at 15. With respect to actual damages, the Court instructed the 
jury  that  actual  damages  represent  “[a]ctual  losses  from  copyright 
infringement” and might include, for example:                        
    •  A decrease in the market value of [Plaintiff’s] copyrighted  
      work caused by the infringement;                              
    •  Profits that [Plaintiff] proves that it would have made      
      without  the  infringement.  Profits  are  the  revenue  that 
      [Plaintiff] would have made on sales [it] would have made     
      without the infringement, less any additional expenses [it]   
      would have incurred in making the sales;                      
    •  What  a  willing  buyer  would  reasonably  have  paid       
      [Plaintiff] to obtain a license to display its copyrighted    
      work.                                                         
Id.  at  16–17.  The  Court  instructed  the  jury  as  follows  with  respect  to 
statutory damages:                                                   
    In  determining  the  appropriate  amount  [of  statutory       
    damages] to award, you may consider the following factors:      
    •  The expenses that NOFAL . . . saved and the profits that it  
      earned because of the infringement;                           
    •  The  revenues  that  [Plaintiff]  lost  because  of  the     
      infringement;                                                 
    •  The difficulty of proving [Plaintiff’s] actual damages;      
    •  The circumstances of the infringement;                       
    •  Whether NOFAL . . . intentionally infringed [Plaintiff’s]    
      copyright; and                                                
    •  Deterrence of future infringement.                           
    With  respect  to  the  factor  of  intentional  infringement:  if 
    [Plaintiff]  proves  that  NOFAL  .  .  .  willfully  infringed 
    [Plaintiff’s] copyright, then you may, but are not required to, 
    increase the statutory damage award as high as $150,000.00.     
    Infringement is considered willful if [Plaintiff] proves that   
    NOFAL . . . knew that its actions constituted infringement . . . 
    or acted with reckless disregard of [Plaintiff’s] copyright. On 
    the  other  hand,  if  NOFAL  .  .  .  proves  that  it  innocently 
    infringed [Plaintiff’s] copyright, then you may, but are not    
    required to, reduce the statutory damage award to a sum as      
    low  as  $200.00.  Infringement  is  considered  innocent  if   
    NOFAL . . . proves that it did not know, and had no reason to   
    know, that its acts constituted infringement.                   
Id. at 17–18.                                                        
    After hearing all the foregoing evidence, the jury found that NOFAL, 
the business entity, was responsible for infringing Plaintiff’s copyright by 
posting the photo on the Facebook page, but that Jaber was not vicariously 
liable for NOFAL’s infringement. ECF No. 50 at 1–2. The jury awarded $200 
in actual damages and $1,000 in statutory damages. Id. at 3. The jury found 
that NOFAL’s infringement was not willful. Id.                       
3.   MOTION TO ALTER OR AMEND JUDGMENT                               
    Plaintiff moves under Federal Rule of Civil Procedure 59(e) for the 
Court to amend its judgment “to conform with the damages evidence    
presented at trial”—that is, to replace the jury’s $200.00 actual damages 
award with an award of $23,976.00—and to reverse the jury’s determination 
that Jaber was not vicariously liable for NOFAL’s infringement. ECF No. 56 
at 6–13. This request fails right out of the gate for legal reasons independent 
of the trial record, so the Court will address it as a threshold matter. 
    Rule 59(e) is not an appropriate vehicle to displace the jury’s factual 
findings in the manner Plaintiff seeks. “A motion to alter or amend a 
judgment is only proper when ‘the movant presents newly discovered   
evidence that was not available at the time of trial or if the movant points 
to evidence in the record that clearly establishes a manifest error of law or 
fact.’” Burritt v. Ditlefsen, 807 F.3d 239, 252–53 (7th Cir. 2015) (quoting Matter 
of Prince, 85 F.3d 314, 324 (7th Cir. 1996)).                        
    Plaintiff relies on the latter basis for relief, arguing that “the jury’s 
award of $200.00 in actual damages is the result of a manifest error of law 
or fact” because it was unsupported by evidence adduced at trial, ECF No. 
56 at 7–9, and is inconsistent with damages awards that other district courts 
have issued in other cases in which Plaintiff recovered damages, id. at 9–12 
(collecting cases). Plaintiff further argues that “[t]he jury’s verdict with 
respect  to  [its]  vicarious  infringement  claim  against  Jaber  was  .  .  . 
unsupported” by the evidence elicited at trial. Id. at 12–13.        
    But as Plaintiff’s motion acknowledges, Rule 59(e) “enables a district 
court to correct its own errors.” Id. at 7 (quoting Russel v. Delco Remy Div. of 
Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995)) (emphasis added by the 
Court). The purported errors that Plaintiff identifies are with the jury’s 
verdict, not the Court’s judgment, which only memorialized that verdict. 
Plaintiff  has  not  pointed  to  any  authority,  binding  or  otherwise,  that 
permits the Court under Rule 59(e) to override the jury’s findings as to 
actual damages and vicarious liability. To the contrary, “a court generally 
may not increase a jury’s determination of damages by additur,” Hibma v. 
Odegaard, 769 F.2d 1147, 1154 (7th Cir. 1985) (collecting cases and secondary 
sources), which is squarely what Plaintiff asks the Court to do. Moreover, 
overriding  the  jury’s  factual  findings  by  way  of  altering  the  Court’s 
judgment under Rule 59(e) risks “undermin[ing] the jury’s fact-finding role 
and trampl[ing] on the defendant’s [S]eventh [A]mendment right to a jury 
trial.” Robinson v. Watts Detective Agency, Inc., 685 F.2d 729, 742 (1st Cir. 
1982) (citing Branson v. Prins Ins., Inc., 79 F.R.D. 662, 664 (D.S.D. 1978) and 
11 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND      
PROCEDURE § 2817 at 111 (1973)); see also 11 CHARLES ALAN WRIGHT &   
ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2810.1 (3d ed. 2024) 
(“The court may not, however, give relief under Rule 59(e) if this would 
defeat a party’s right to jury trial on an issue.”).                 
    Some district courts have entertained motions to alter a jury’s factual 
findings as to liability under Rule 59(e). See, e.g., Black & Decker, Inc. v. Robert 
Bosch Tool Corp., No. 04 C 7955, 2007 WL 108412, at *5 (N.D. Ill. Jan. 12, 2007) 
(considering but ultimately denying motion to alter judgment under Rule 
59(e), which argued “that the jury committed . . . . manifest errors of fact” 
in deciding patent infringement claims); Orlowski v. Eriksen, No. 07 C 4015, 
2009 WL 5183226, at *7 (N.D. Ill. Dec. 30, 2009) (considering but declining 
under Rule 59(e) to amend jury finding that defendant was liable for 
excessive force where jury also found that plaintiff’s damages were $0); but 
see Genesys Cloud Servs., Inc. v. Talkdesk, Inc., No. 1:19-CV-00695-TWP-MKK, 
2024 WL 4289737, at *13 (S.D. Ind. Sept. 25, 2024) (discussing case law and 
noting that “amendment of the judgment is not a proper remedy for an 
inconsistent verdict”). But Plaintiff has not demonstrated that doing so is 
proper.                                                              
    It is also true that federal courts may increase or reduce a jury’s 
damages award where the amount of damages is clear as a matter of law. 
11 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND      
PROCEDURE §§ 2815 and 2816 (3d ed. 2024). But Plaintiff has not argued or 
established that its damages are clear as a matter of law. First, as explained 
further in the balance of this Order, the Court does not agree with Plaintiff’s 
statement that it “proffered unrebutted testimony/evidence of its damages 
that the jury completely ignored.” ECF No. 56 at 12. Jones testified as to the 
value  offered  by  Plaintiff’s  subscription  model,  and  then  Defendants’ 
counsel cross-examined her about these statements, her assessment of the 
value of one photo from the library, and her credibility. See supra Section 
2.3. This gave the jury more to consider than just Jones’s direct testimony.  
    Second, Plaintiff argues that the damages award should be in line 
with awards in similar cases to which Plaintiff cites, but Plaintiff fails to 
acknowledge that all of its cited cases were decided on default judgment 
relying  only  on  Plaintiff’s  declarations  (and  well  over  half  of  which 
awarded statutory, not actual, damages). ECF No. 56 at 9–12 (citing Prepared 
Foods Photos, Inc. v. Patriot Fine Foods LLC, No. 21-82129-CV, 2022 U.S. Dist. 
LEXIS 205649, at *10 (S.D. Fla. Mar. 22, 2022) (awarding $23,976.00 in 
statutory damages); Prepared Food Photos, Inc. v. 193 Corp., No. 1:22-cv-
03832,  2022  U.S.  Dist.  LEXIS  205690,  at  *15  (N.D.  Ill.  Sept.  21,  2022) 
(awarding $35,964.00 in actual damages); Prepared Food Photos, Inc. v. Miami 
Beach 411 Corp., No. 22-23197-CIVALTONAGA/Damian, 2022 U.S. Dist.    
LEXIS 216003, at *10 (S.D. Fla. Nov. 28, 2022) (awarding $35,964.00 in actual 
damages); Prepared Food Photos, Inc. v. Fat Daddy Co., No. 22-61671-CIV, 2022 
U.S. Dist. LEXIS 216004, at *24 (S.D. Fla. Nov. 29, 2022) (awarding $23,976.00 
in statutory damages); Prepared Food Photos, Inc. v. Perry Wings Plus, Inc., 
No. 22-CV-61883-RAR, 2022 WL 22885965, at *8 (S.D. Fla. Dec. 19, 2022) 
(awarding $71,928.00 in statutory damages); Prepared Food Photos, Inc. v. 
Silver Star of Brooklyn / Brooklyn’s Best Inc., No. 1:22-cv-04196-WFK-CLP, 
2023 U.S. Dist. LEXIS 22037, at *19 (E.D.N.Y. Jan. 23, 2023) (awarding 
$71,928.00 in statutory damages); Prepared Food Photos, Inc. v. Chi.-Mkt.-
Distribs., Inc., No. 1:22-CV-03299-CNS-MEH, 2023 WL 3568164, at *1 (D. 
Colo. May 19, 2023) (awarding $35,964.00 in actual damages); Prepared Food 
Photos, Inc. v. Exec. Dining Club, Inc., No. 22-cv-9446 (ER), 2023 U.S. Dist. 
LEXIS 99676, at *2 (S.D.N.Y. May 25, 2023) (awarding Plaintiff $71,928.00 in 
statutory damages); Prepared Food Photos, Inc. v. Shadowbrook Farm LLC, No. 
1:22-CV-00704 (LEK/ATB), 2023 U.S. Dist. LEXIS 110171, at *15 (N.D.N.Y. 
June 27, 2023) (awarding Plaintiff $23,976.00 in statutory damages); Prepared 
Food Photos, Inc. v. WaDaYaNeed, LLC, No. 1:22-CV-01270 (LEK/ATB), 2023 
U.S. Dist. LEXIS 110993, at *15 (N.D.N.Y. June 28, 2023) (awarding Plaintiff 
$23,976.00 in statutory damages); Prepared Food Photos, Inc. v. Mikey’s Famous 
Marinades Corp., No. 23-CV-1484 (JMA) (AYS), 2023 U.S. Dist. LEXIS 132222, 
at *13 (E.D.N.Y. July 31, 2023) (awarding $23,976.00 in statutory damages); 
and Prepared Food Photos, Inc. v. New Kianis Pizza & Subs, Inc., No. 1:23-CV-
926-JRR,  2024  U.S.  Dist.  LEXIS  52023,  at  *4–5  (D.  Md.  Mar.  25,  2024) 
(awarding $47,952.00 in actual damages)).                            
    Even if any of these cases were binding authority, which they are 
not, Plaintiff does not explain what relevance default judgment decisions 
have in scrutinizing a jury’s award of damages or why they make Plaintiff’s 
actual damages ascertainable as a matter of law. Plaintiff also conveniently 
omits reference to another case it had before this Court in which the Court 
granted  default  judgment  but  declined  to  adopt  Plaintiff’s  proposed 
damage  award  because  it  “ha[d]  not  explained  why  its  own  business 
model, which is structured to disallow licensing of individual photos and 
short-term licenses, is the single most accurate measure of its damages.” 
Prepared Food Photos, Inc. v. Hometown Publ’ns II Inc., No. 22-CV-652-JPS, 
2023 WL 3439535, at *4 (E.D. Wis. May 12, 2023), default judgment vacated due 
to Plaintiff’s voluntary dismissal of the case, No. 22-CV-652-JPS, 2023 WL 
11931194 (E.D. Wis. May 31, 2023).                                   
    To conclude: Plaintiff has not provided, and the Court is unable to 
locate, any authority that would allow the Court to amend the judgment 
and directly displace the jury’s findings in the manner Plaintiff suggests. It 
actually appears that granting Plaintiff’s request would offend the Seventh 
Amendment. In any event, Plaintiff’s arguments are, at bottom, challenges 
to the sufficiency and weight of the evidence and the jury’s assessment 
thereof. The motion admits this by its own terms. ECF No. 56 at 9 (“There 
is  simply  no  rational  basis  for  the  jury’s  award  of  $200.00  in  actual 
damages . . . .”) and 13 (“[T]hus the jury’s verdict [as to vicarious liability] 
was against the weight of [the] evidence.”). These arguments are properly 
addressed through a motion for a new trial, and the Court construes and 
addresses them as such infra Section 4. See 11 CHARLES ALAN WRIGHT & 
ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2807 (3d ed. 2024) 
(noting that a court “may grant a new trial if the size of the verdict is against 
the weight of the evidence”).6 By invoking Rule 59(e), Plaintiff attempts to 

    6If Plaintiff wanted to argue that the jury did not have a legally sufficient 
evidentiary basis to find that Jaber was not vicariously liable or to find any other 
amount of damages besides that which Jones testified to—which is essentially 
what Plaintiff is trying to achieve by asking the Court to amend the jury’s verdict 
in this respect under Rule 59(e)—then Plaintiff could have moved for judgment as 
shoehorn its desired result into the Court’s judgment, bypassing the jury 
entirely. This is inappropriate. Plaintiff’s request to alter or amend the 
judgment is not well taken and is therefore denied.                  
4.   MOTION FOR A NEW TRIAL                                          
    Federal Rule of Civil Procedure 59(a)(1)(A) provides that the Court 
“may, on motion, grant a new trial on all or some of the issues . . . after a 
jury trial, for any reason for which a new trial has heretofore been granted 
in an action at law in federal court.” This is generally accepted to mean that 
the Court “may only order a new trial if the jury’s verdict is against the 
manifest weight of the evidence, . . . or if for other reasons the trial was not 
fair to the moving party.” Willis v. Lepine, 687 F.3d 826, 836 (7th Cir. 2012) 
(quoting Marcus & Millichap Inv. Servs. v. Sekulovski, 639 F.3d 301, 313 (7th 
Cir. 2011) (internal quotation marks omitted)).                      
    “In passing on a motion for a new trial, the district court has the 
power to get a general sense of the weight of the evidence, assessing the 
credibility of the witnesses and the comparative strength of the facts put 
forth at trial.” Mejia v. Cook County, 650 F.3d 631, 633 (7th Cir. 2011) (citing 
Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 540 (1958); United States 
v. Washington, 184 F.3d 653, 658 (7th Cir. 1999); and Bob Willow Motors, Inc. 
v. Gen. Motors Corp., 872 F.2d 788, 798 (7th Cir. 1989)). The Court does not 
view the evidence in the light most favorable to either party; it instead 
makes “its own assessment of the evidence presented.” Id. at 634 (citing 
Cefalu v. Village of Elk Grove, 211 F.3d 416, 424 (7th Cir. 2000)). “While a court 

a matter of law on these issues under Federal Rule of Civil Procedure 50(a) at the 
close of evidence. He did not do so, despite invoking Rule 50(a) for a different 
purpose. See ECF No. 57 at 209 (Plaintiff’s oral Rule 50(a) motion on fair use 
defense). This fact further persuades the Court that Rule 59(e) is not the proper 
basis for Plaintiff’s motion.                                        
adjudicating a motion for a new trial may gauge the weight of the evidence 
and assess witness credibility, a jury verdict should only be overturned if 
‘no rational jury’ could have rendered it.” Hakim v. Safariland, LLC, 79 F.4th 
861, 868 (7th Cir. 2023) (quoting Whitehead v. Bond, 680 F.3d 919, 928 (7th 
Cir. 2012)).                                                         
    Plaintiff  explicitly  references  only  the  “manifest  weight  of  the 
evidence” standard in its motion, ECF No. 56 at 13, but appears to argue 
that a new trial is warranted as a matter of fairness as well. The Court 
understands Plaintiff to be arguing for a new trial as follows.      
    Plaintiff  says  that  it  was  “severely  prejudiced  by  the  Court’s 
evidentiary  rulings  excluding”  evidence  of  Defendants’  statements  in 
discovery that were inconsistent with Jaber’s testimony at trial, and that this 
evidence,  if  admitted,  would  have  impacted  the  jury’s  assessment  of 
vicarious liability, willfulness, and statutory damages. See id. at 13–14.  
    Relatedly, Plaintiff argues that the jury’s finding that Jaber was not 
vicariously  liable  for  NOFAL’s  infringement  was  against  the  manifest 
weight of the evidence, at least in part because the Court excluded evidence 
that might have persuaded the jury otherwise. Id. at 12–13 (arguing that 
“the jury’s verdict with respect to Plaintiff’s vicarious infringement claim 
against Jaber was . . . unsupported”).                               
    Plaintiff  further  challenges  the  jury’s  award  of  $200  in  actual 
damages as “arbitrary” and without “rational basis,” i.e., against the weight 
of the evidence. Id. at 9, 12. As noted supra Section 3, although Plaintiff 
raised them under Rule 59(e), the Court construes the arguments that the 
jury’s finding no vicarious liability and awarding $200 in actual damages 
were against the weight of the evidence under the standard for granting a 
new trial.                                                           
    Finally, Plaintiff briefly suggests that the jury’s allegedly improper 
determination of actual damages, combined with the exclusion of Plaintiff’s 
proffered evidence, led the jury to calculate an improper statutory damages 
award, and that a new trial is warranted as a matter of fairness for this 
reason. See id. at 14.                                               
    Because  Plaintiff’s  arguments  about  fairness  and  exclusion  of 
evidence are in many ways intertwined with its argument that the verdict 
went against the weight of the evidence (and because Plaintiff’s motion, 
frankly,  is  disorganized),  the  Court  addresses  these  arguments  as 
appropriate with respect to each substantive verdict question.       
    4.1  Vicarious Liability                                        
    “[A] defendant is vicariously liable for copyright infringement if it 
has the right and ability to supervise the infringing activity and also has a 
direct financial interest in such activities.” Marobie-FL, Inc. v. Nat’l Ass’n of 
Fire Equip. Distribs., 983 F. Supp. 1167, 1179 (N.D. Ill. 1997) (quoting Hard 
Rock Cafe Licensing Corp. v. Concession Servs., Inc., 955 F.2d 1143, 1150 (7th 
Cir. 1992) (internal quotation marks omitted)); see also ECF No. 49 at 15. The 
second element requires “evidence of a direct financial gain or that the 
‘availability of infringing material acts as a draw for customers.’” GC2 Inc. 
v. Int’l Game Tech. PLC, 255 F. Supp. 3d 812, 825 (N.D. Ill. 2017) (quoting 
Ellison v. Robertson, 357 F.3d 1072, 1078 (9th Cir. 2004)). “The essential aspect 
of  the  ‘direct  financial  benefit’  inquiry  is  whether  there  is  a  causal 
relationship between the infringing activity and any financial benefit a 
defendant reaps . . . .” Ellison, 357 F.3d at 1079.                  
    The parties’ arguments for and against a new trial focus specifically 
on the second element of vicarious liability: direct financial interest or gain 
to Jaber from the infringement. ECF No. 56 at 12–14; ECF No. 59 at 5–6. 
Plaintiff contends that the jury should have found Jaber vicariously liable 
for NOFAL’s infringement because the evidence at trial showed that Jaber 
had  a  financial  interest  in  and  “profited  generally”  from  NOFAL’s 
infringing use of the photo on the grocery store’s Facebook page. ECF No. 
56  at  12–13.  It  blames  the  failure  of  its  vicarious  liability  claim  on 
Defendants’ counsel “confus[ing] the issue by arguing (in closing) that 
there was no evidence of a specific dollar amount of profit received by Jaber 
with respect to the sale of pork chops.” Id. at 13; see also ECF No. 58 at 71 
(relevant portion of Defendants’ closing argument). Plaintiff additionally 
argues that, had the jury been able to consider evidence that the Court 
excluded,  such  as  “photographs  on  the  Facebook  [p]age  other  than 
[Plaintiff’s photo],” it would have decided differently on this issue. ECF No. 
56 at 13–14. The Court disagrees on all fronts. The evidence adduced at trial 
amply supports the jury’s conclusion that Jaber was not vicariously liable 
for NOFAL’s infringement, and the admission of the evidence to which 
Plaintiff refers would not have changed this result.                 
    First of all, if Plaintiff’s counsel had concerns about Defendants’ 
counsel confusing the issue or misstating the applicable legal standard, this 
post-trial motion should not be the first time that the Court is hearing that 
concern. Plaintiff’s counsel could have provided the jury clarity on the legal 
standard for vicarious liability by requesting additional jury instructions, 
see ECF No. 48 at 7–8; objecting during the relevant portion of Defendants’ 
closing argument, ECF No. 58 at 71; and/or responding to this portion 
during his own rebuttal, ECF No. 58 at 76–85. He did none of these things. 
In  any  event,  the  jury  was  also  explicitly  instructed  that  “opening 
statements and closing arguments by the lawyers for the parties are not 
evidence,” ECF No. 58 at 21, so it is questionable how much stock the jury 
put into Defendants’ counsel’s statement. See Chlopek v. Fed. Ins. Co., 499 
F.3d 692, 702 (7th Cir. 2007) (noting that there is a “strong presumption that 
juries follow instructions” (citing 3M v. Pribyl, 259 F.3d 587, 600 (7th Cir. 
2001)).                                                              
    Moreover, the evidence presented to the jury could have supported 
a finding that Jaber accrued no direct financial gain from the infringement 
or that the infringement did not draw customers to the grocery store, just 
as the evidence equally could have supported a finding to the contrary. 
Jaber testified that the grocery store sells pork chops every week and that 
he profits from those sales. ECF No. 57 at 181. Hearing this testimony, the 
jury could have concluded that Jaber profited generally from the sale of 
pork chops before, during, and after the  infringing post—i.e., that the 
infringing use of Plaintiff’s photo had no measurable effect on pork chop 
sales at the grocery store, and that Plaintiff’s assertion that the infringing 
use of the photo did generate profits for NOFAL and Jaber was mere   
speculation. The jury could have reasonably concluded that Plaintiff failed 
to establish that the infringing use of its photo had any specific effect on 
Defendants’ sales that would not have materialized otherwise.        
    Amjad testified that the post would have reached the grocery store’s 
approximately 1,000 Facebook followers, id. at 191, but Plaintiff’s counsel 
made no attempt to determine whether Amjad—who admitted he managed   
the Facebook page—knew if any of those followers were in fact converted 
to store shoppers because of the post or if followers generally came into the 
store because of Facebook posts. See Ellison, 357 F.3d at 1079 (noting as 
relevant to the direct financial benefit element that “there is no evidence 
that indicates that . . . customers either subscribed because of the available 
infringing material or canceled subscriptions because it was no longer 
available”).  Similarly,  Plaintiff’s  counsel  presented  no  evidence  that 
Defendants’  sales—of  pork  chops,  specifically,  or  of  merchandise, 
generally—increased following the Facebook post. This further undermines 
a conclusion that the infringing use of Plaintiff’s photo directly financially 
benefited NOFAL and Jaber.  It is immaterial  that Defendants’ counsel 
argued that Plaintiff had not shown that Jaber attained a specific dollar 
amount of profits, because there was ample evidence from which the jury 
could reject Plaintiff’s own argument that Jaber “profited generally” from 
the infringement. ECF No. 56 at 13.                                  
    In light of the equally reasonable inferences that can be drawn from 
the  trial  record,  the  Court  cannot  conclude  that  the  jury’s  verdict  on 
vicarious liability went against the manifest weight of the evidence. Indeed, 
the Court is inclined to agree that simply because Plaintiff showed that 
Jaber profited from sales at the grocery store as a general matter does not 
mean that Plaintiff showed that grocery store sales or Jaber’s profits, in fact, 
increased because of the infringement. Without a clear evidentiary consensus 
as to one element of vicarious liability, the jury was obligated not to find 
such liability. ECF No. 49 at 15 (requiring proof of all elements to sustain a 
claim).7                                                             

    7The  parties  do  not  dispute  that  Jaber  had  the  “right  and  ability  to 
supervise  the  infringing  activity.”  Marobie-FL,  983  F.  Supp.  at  1179  (citation 
omitted). Although the parties elicited much evidence about whether and when 
Jaber knew about the Facebook page and the extent to which he knew about and 
controlled NOFAL employees’ activities, neither party asked for, and the Court 
did not provide, further instruction to the jury about what it meant for Jaber to 
have the “right and ability to stop or limit the infringement by NOFAL.” ECF No. 
49 at 15.                                                            
    To the extent the jury questioned whether Jaber, by virtue of his asserted 
lack of knowledge of the Facebook page and post prior to February 2023, had the 
right and ability to control the infringing activity, it appears that as a legal matter 
    The  Court  next  addresses  Plaintiffs’  contention  that  the  Court 
improperly  excluded  evidence.  ECF  No.  56  at  14.  Plaintiff  has  not 
adequately explained how it was prejudiced by the exclusion of other 
photographs from the Facebook page and related testimony, or how the 
admission of this evidence and testimony might have impacted the jury’s 
analysis  as  to  vicarious  liability.  The  Court  agrees  that  Jaber  took 
inconsistent positions throughout this lawsuit with respect to when he 
knew  about  the  Facebook  page  and  its  affiliation  with  NOFAL.  But, 
importantly, at trial in front of the jury, he admitted that as of February 2023 
he knew of the Facebook page and the infringing post . So even if the Court 
had permitted the jury to consider evidence contradicting Jaber’s earlier 
denial of familiarity with the Facebook page, the post, or the store and its 
products, the jury would have been entitled to credit his live testimony—
which  did  him  no  favors—more  than  that  evidence.  It  appears  that 
crediting Jaber’s trial testimony is exactly what the jury did here, and the 
Court finds no fault in that decision. Accordingly, the Court finds no merit 
in Plaintiff’s argument that the Court’s evidentiary rulings require a new 
trial.                                                               
    4.2  Damages                                                    
    Plaintiff’s challenge to the jury’s award of $200 in actual damages as 
against the weight of the evidence also fails. “The court is required to give 

he did. See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 931 n.9 
(2005) (explaining that the theory of “vicarious liability . . . allows imposition of 
liability when the defendant profits directly from the infringement and has a right 
and ability to supervise the direct infringer, even if the defendant initially lacks 
knowledge of the infringement” (citing Shapiro, Bernstein & Co. v. H.L. Green Co., 
316 F.2d 304, 308 (2d Cir. 1963) and Dreamland Ball Room, Inc. v. Shapiro, Bernstein 
& Co., 36 F.2d 354, 355 (7th Cir. 1929))).                           
significant deference to the jury’s verdict and to limit its inquiry to whether 
the  award  is  ‘monstrously  excessive,’  whether  there  is  any  rational 
connection between the award and the evidence, and whether the award is 
roughly comparable to those made in  similar  cases.”  Golden v. City of 
Chicago, No. 07 C 6928, 2009 WL 3152359, at *4 (N.D. Ill. Sept. 28, 2009) 
(quoting Farfaras v. Citizens Bank and Tr. of Chi., 433 F.3d 558, 566 (7th. Cir. 
2006)); see also Adams v. City of Chicago, 798 F.3d 539, 543 (7th Cir. 2015) 
(noting  that  a  court  may  grant  a  new  trial  on  the  basis  of  a  jury’s 
inappropriate damages award when  it finds that “there  is no rational 
connection between the award and the evidence, indicating that it is merely 
a product of the jury’s fevered imaginings or personal vendettas” (quoting 
G.G. v. Grindle, 665 F.3d 795, 798 (7th Cir. 2011))).8               
    “In the context of a plaintiff’s contention that a jury verdict is too 
low, the issue is essentially whether ‘the record is capable of supporting the 
jury’s verdict, even if some would interpret that evidence differently.’” 
Golden, 2009 WL 3152359, at *4 (quoting Blumenfeld v. Stuppi, 921 F.2d 116, 
118 (7th Cir. 1990)). “Typically, a reviewing court will not order a new trial 

    8Plaintiff cites the Adams standard for the first time in its reply brief. ECF 
No. 60 at 3 (citing 798 F.3d at 543). Because the Court is construing Plaintiff’s Rule 
59(e) motion as one for a new trial under Rule 59(a), it will look past the error.  
    Additionally,  Plaintiff  cites  Entertainment  USA,  Inc.  v.  Moorehead 
Communications, Inc. for the proposition that “‘[a]n award of damages must be 
within the scope of the evidence that was presented at trial’ and cannot stray 
beyond that scope.” Id. (quoting 897 F.3d 786, 793 (7th Cir. 2018)). Plaintiff fails to 
indicate that Entertainment USA was analyzing damages in a breach of contract 
action under Indiana law and quoting Indiana case law. Ent. USA, 897 F.3d at 793 
(quoting Indianapolis City Market Corp. v. MAV, Inc., 915 N.E.2d 1013, 1026 (Ind. Ct. 
App. 2009)). Assuming that Plaintiff’s counsel actually read the case he cites, he 
offers no explanation for why Indiana contract law—or an Indiana state court’s 
pronouncement of how a jury may determine damages—should govern the jury’s 
determination of damages in this copyright case under federal law.   
on damages ‘merely because [it believes] the jury’s award was too low. The 
assessment of damages is particularly within the province of the jury as the 
trier of fact.’” Id. (quoting Blumenfeld, 921 F.2d at 118 and Fenolio v. Smith, 
802 F.2d 256, 259 (7th Cir. 1986)).                                  
    Plaintiff emphasizes that “[t]he jury was not free to disregard the 
only  testimony/evidence”  it  heard  with  respect  to  damages:  Jones’s 
statement that NOFAL’s use of the photo over a period spanning two years 
would have been subject to Plaintiff’s usual licensing fee and structure, 
totaling $23,976 in subscription fees, and that Plaintiff’s other customers 
pay such fees to use its services. ECF No. 56 at 7–8. Plaintiff insists that this 
means that it established as an undisputed fact that $23,976 is “[w]hat a 
willing buyer would reasonably have paid [it] to obtain a license to display 
its copyrighted work.” Id. at 8 (citing ECF No. 49 at 17).           
    In response, Defendant notes that the jury was “entitled to reject 
[Jones’s] testimony” after considering that the copyright for the photo was 
not registered until 20 years after it was taken, inconsistencies between her 
declaration  and  testimony  at  trial,  and  Jones’s  testimony  on  cross-
examination about the relative value of a single photo in Plaintiff’s photo 
library. ECF No. 59 at 4 (noting that  Jones “admitted”  that the photo 
represented .005 percent of Plaintiff’s total library). Plaintiff contends that 
“[e]ven if Defendants’ counsel’s division question amounted to evidence (it 
did not), that would have resulted in a $.60 verdict for Plaintiff,” so the 
jury’s $200 damages award could not have been calculated to reflect the 
value of a single photo. ECF No. 56 at 9. Plaintiff also argues that any issues 
on which Jones was “discredited” by her testimony are irrelevant to the 
issue of damages. ECF No. 60 at 4.                                   
    The  Court  takes  strong  exception  to  counsel’s  suggestion  that 
Plaintiff established as an undisputed fact that a willing buyer would have 
paid $23,976 to use the single photo at issue in this case. A case that Plaintiff 
cites, ECF No. 56 at 8, Epic Systems Corp. v. Attachmate Corp., provides 
helpful guidance on the issue of damages in a copyright case:        
    Calculating  damages  based  on  ‘fair  market  value’  is  the 
    preferred approach taken in cases involving the unauthorized    
    use of copyrights . . . . McRoberts Software, Inc. v. Media 100, 
    Inc., 329 F.3d 557, 566 (7th Cir. 2003) . . . ; Deltak, Inc. v. 
    Advanced System, Inc., 767 F.2d 357, 364 (7th Cir. 1985). . . . In 
    calculating the  fair market value of an unauthorized use,      
    courts will attempt to determine the price to which a willing   
    buyer  and  a  willing  seller  would  have  agreed  had  they  
    engaged  in  an  ex-ante  “hypothetical  negotiation”  for  the 
    specific type of unlicensed use at issue. McRoberts Software,   
    Inc., 329 F.3d  at  566. . . . Some of the  factors commonly    
    considered  [in  this  analysis]  include  “past  arms-length   
    licensing practices by the copyright owner or the infringer for 
    similar  uses  and  ‘benchmark’  licenses  by  others  in  the  
    industry may be useful.” Gaylord [v. United States], 777 F.3d   
    [1363,] 1368 [(Fed. Cir. 2015)]. Moreover, “the court is not    
    constrained to accept particular practices of the parties on    
    either  side—either  to  allow  owners  to  charge  what  they  
    would like to have charged if unconstrained by reality or to    
    shield infringers from paying fair market value for what they   
    took.” Id. (internal citations and quotations omitted).         
No. 15-CV-179-BBC, 2016 WL 3703084, at *2 (W.D. Wis. July 8, 2016). The 
Court instructed the jury in this case that it could use this fair market value 
approach in determining actual damages. ECF No. 49 at 16–17.9        

    9The jury was also permitted to consider “[a] decrease in the market value” 
of the photo because of the infringement and profits that Plaintiff would have 
made without the infringement as measures of actual damages. ECF No. 49 at 17.  
    So the focus is not just whether Jones’s testimony about licensing fees 
is or is not dispositive, but more broadly whether $200 reflects the fair 
market value of Plaintiff’s photo (or some other measure of Plaintiff’s 
damages) based on all the evidence adduced at trial and all reasonable 
inferences that can be drawn from it.                                
    First,  the  Court  finds  that  Jones’s  testimony  was  not  entirely 
dispositive on the matter of actual damages, because accepting it would 
require the jury to assume facts not in evidence. As one of the cases Plaintiff 
relies on states, Plaintiff’s annual licensing fees are only a “useful proxy” of 
its actual damages. ECF No. 56 at 9 (quoting Patriot Fine Foods LLC, 2022 
U.S. Dist. LEXIS 205649, at *10). That district court specifically noted that 
Plaintiff had not established “whether any licensor ha[d] paid that amount 
to utilize a single photograph in the library.” Id. Similarly, here, Plaintiff 
established  that  its  current  customers  have  agreed  to  pay  its  annual 
licensing fees, but it did not establish that any customer/licensor had paid 
or would pay that amount to utilize a single photo. Adopting Plaintiff’s 
position would require the jury and the Court to assume a fact that was not 
established and that, frankly, goes against all reason: that a  would-be 
licensor (in this case, a single family-owned neighborhood grocery store) 
would pay about $12,000 a year to utilize a single photo.            
    Second, and more importantly, the jury also could reasonably infer 
from the evidence that $200 reflects the fair market value of Plaintiff’s photo 
or  otherwise  is  an  accurate  measure  of  Plaintiff’s  damages.  As  the 
authorities above suggest, determining the price to which a buyer and seller 
would have agreed for a one-time use of a single photo is not driven solely 
by the price that the seller (here, Plaintiff) names, and the jury was not 
required to make the unreasonable assumption that a licensor in NOFAL’s 
position would have agreed to Plaintiff’s licensing fee. Epic Sys., 2016 WL 
3703084, at *2 (noting that the analysis focuses on “the specific type of 
unlicensed use at issue” (citing McRoberts Software, Inc., 329 F.3d at 566 and 
Gaylord, 777 F.3d at 1368)). Further, just because Plaintiff’s licensing model 
does not permit licensing of single photos does not mean that the cost of a 
single photo should be discounted as a measure of actual damages. Id. 
(“[T]he court is not constrained to . . . allow owners to charge what they 
would like to have charged if unconstrained by reality . . . .” (quoting 
Gaylord, 777 F.3d at 1368)).                                         
    Plaintiff raises the fair point that the jury did not award the cost of a 
single  photo  as  its  actual  damages  and  instead  settled  on  an  amount 
somewhere between the cost of a single photo and the cost of two twelve-
month subscriptions to Plaintiff’s library. But the Court finds no basis to 
suggest that this requires reversal of the jury’s damages award and a new 
trial. It seems likely that the jury was attempting to award Plaintiff more 
than  the  cost  of a single photo while  also penalizing Defendants and 
recognizing that no willing buyer would have agreed to pay Plaintiff’s 
twelve-month subscription fees for a one-time use of a single photo. This is, 
after all, essentially what Plaintiff asked for in its November 2021 demand 
letter: that Defendants pay some amount in excess of what a lawful licensor 
would have paid, to reflect the unlawful infringement. See ECF No. 57 at 70 
(Jones  testimony  regarding  the  demand  letter)  (“You’re  punished  by 
having to pay more.”). Or perhaps the jury was attempting to award the 
value of a single photo, accounting not only for the raw mathematical value 
of a single photo out of a library of 18,000, but also the time and effort that 
went into creating, copyrighting, and maintaining the single photo—facts 
to which Jones testified. These are both appropriate ways of protecting the 
interests of the copyright owner while not “shield[ing] infringers from 
paying fair market value for what they took.” Epic Sys., 2016 WL 3703084, 
at *2 (quoting Gaylord, 777 F.3d at 1368).                           
    Alternatively, perhaps the jury found that $200 fairly accounted for 
the decrease in the market value of Plaintiff’s copyrighted work. Jones 
testified that the use of a single one of Plaintiff’s photographs “greatly 
reduce[s] the value of the library.” ECF No. 57 at 94. Perhaps the jury 
credited this and—although Jones refused to speculate on the degree of 
reduction in the value of the library—concluded that, despite a single photo 
having only nominal value when viewed as part of a library of 18,000, the 
infringing use lowered the value of Plaintiff’s library by $200. All of the 
above-stated conclusions were reasonable ones to draw in light of the 
evidence and were “within the province of the jury[,] as the trier of fact,” to 
draw. Blumenfeld, 921 F.2d at 118 (citation omitted).                
    It is true, as Plaintiff points out, that “Defendants did not offer any 
expert testimony concerning the value of a single photograph or the entirety 
of Plaintiff’s library.” ECF No. 56 at 7. But Plaintiff does not suggest, let 
alone demonstrate, that the introduction of such evidence would have 
changed the jury’s assessment of actual damages.10                   


    10To the contrary, it appears that such evidence would, in all likelihood, 
have supported the jury’s damages award rather than undermine it. See, e.g., 
Pricing & Subscriptions, GALLERY STOCK, https://www.gallerystock.com/pricing 
[https://perma.cc/K6KY-96LH] (last visited Apr. 7, 2025) (providing a one-time use 
of stock photo in social media starting at $65 “based on factors such as . . . 
exclusivity[]  and  geographic  distribution”);  Pricing,  SHUTTERSTOCK, 
https://www.shutterstock.com/pricing (last visited Apr. 7, 2025) (providing a two-
pack of stock photos with “enhanced” licensing at $159, an annual subscription 
starting at $29 per month, or a month-to-month subscription starting at $49 per 
month); Plans and Pricing, GETTY IMAGES, https://www.gettyimages.com/plans-
    For all these reasons, the Court finds that the jury’s actual damages 
award was supported by the record and all reasonable inferences to be 
drawn therefrom. Accordingly, the size of the actual damages award is not 
a basis to order a new trial.                                        
    4.3  Statutory Damages and Willfulness                          
    Having concluded that the  jury’s conclusion  that Jaber was not 
vicariously liable and its award of actual damages were not against the 
weight  of  the  evidence,  the  Court  can  make  quick  work  of  Plaintiff’s 
remaining arguments. As a threshold matter, these arguments are brief and 
therefore likely waived as completely underdeveloped. Schaefer v. Universal 
Scaffolding & Equip., LLC, 839 F.3d 599, 607 (7th Cir. 2016) (“Perfunctory and 
undeveloped arguments are waived, as are arguments unsupported by    
legal authority.” (citing United States v. Hook, 471 F.3d 766, 775 (7th Cir. 
2006))). But they also have no merit.                                
    Plaintiff  says  that  the  Court’s  decision  to  exclude  evidence  of 
Defendants’ statements in discovery that were inconsistent with Jaber’s 
testimony at trial resulted in an unfair trial because it prevented the jury 
from accurately assessing whether Defendants’ conduct was willful and 
accordingly impacted its $1,000 statutory damages award. ECF No. 56 at 14. 
The Court disagrees, for reasons already explained: while it is true that 
Jaber made incorrect statements in discovery, he corrected the mistakes and 
testified truthfully to the jury even though doing so was not to his benefit, 
and the jury was entitled to credit that trial testimony. This would be true 
even if the Court had admitted the evidence to which Plaintiff refers.  

and-pricing [https://perma.cc/8MWD-N6LF] (last visited Apr. 7, 2025) (providing 
for download of a single image starting at $199).                    
      Plaintiff's  argument  that  the  trial  was  unfair  because  the  jury’s 
allegedly  improper  determination  of  actual   damages  infected  its 
determination of statutory damages, id., also fails. As already explained, the 
jury’s actual damages award was not improper. Plaintiff says that the actual 
damages award affected consideration of “the revenues that Plaintiff lost 
because of the infringement,” id., one of several factors guiding the jury’s 
discretion in determining statutory damages. ECF No. 49 at 17. For the same 
reasons explained above, it is not reasonable to conclude that Plaintiff lost 
over $24,000 in revenue (licensing fees) from the infringing use of a single 
photo, because Plaintiff did not establish that $24,000 was the fair market 
value of this use. 
      The  Court  therefore  cannot conclude  that the  trial  was unfair  to 
Plaintiff for either of these reasons. 
5.     CONCLUSION 
      For all the reasons stated above, Plaintiff’s motion for a new trial or 
to alter or amend the judgment will be denied. 
      Accordingly, 
      IT IS ORDERED that Plaintiff Prepared Food Photos, Inc.’s motion 
for a new trial and/or to amend judgment, ECF No. 56, be and the same is 
hereby DENIED. 
      Dated at Milwaukee, Wisconsin, this 7th day of April, 2025. 
                              BY   THECOURT: 
                             \\   AV       Se 
                               PR 
                               PUY  fea          , 
                              JAP. Stay  ueller 
                              U.S: District Judge 

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