Attorney's Fees Denied to Prevailing Gaye Family in Blurred Lines Case

Williams v. Bridgeport Music, No. CV13-6004 (C.D. Cal. Apr. 12, 2016).

After winning a trial, the Gaye Family was denied its application for attorney's fees under section 505 the Copyright Act.  Also, the taxable costs requested by the Gaye Family, as the prevailing party, were reduced.  As to attorney's fees, the Court underwent an analysis of the "Fogerty" & "Lieb" factors, and found that the factors did not weigh in favor of the Gaye Family as the prevailing party.  "Beyond the success on the merits, little else supports their position.  This case presented novel issues.  How they would be determined was not, even with hindsight, something that was clear."

Beastie Boys & UMG Awarded Attorney's Fees In TufAmerica Copyright Action

TufAmerica, Inc. v. Diamond et al., No. 12-cv-3529 (S.D.N.Y. filed Mar. 9, 2016).

The Court awarded the Beastie Boys and their label, UMG, attorney's fees under section 505 of the Copyright Act, after they successfully defeated plaintiff's infringement claims at summary judgment.  The question at summary judgment was whether Plaintiff had standing (they did not), and the Court found that awarding fees furthered the objectives of the Copyright Act by deterring the filing and pursuit of lawsuits in which chain of title has not been properly investigated by the plaintiff.   The court reduced the Beastie Boys' lawyer's fees by 10% for some vague billing entries and duplicative work; 15% was reduced from the label's lawyer's fees based on vague and sparse entries.  Beastie Boys and UMG were also awarded costs.  The totals were:

• Beastie Boys: approx. $591k fees, approx. $11k costs
• UMG: appox. $234k fees, approx $8k costs

Co-Ownership Claims In Jay-Z Songs Time Barred; 2nd Cir.

Mahan v. Roc Nation, No. 15-1238cv (2d Cir. Feb. 24, 2016).

A former Roc-a-fella Records sound engineer's copyright co-ownership claims in certain Jay-Z recordings, brought 14 years after the recordings were made and released, are time-barred, holds the Second Circuit Court of Appeals in affirming the lower court's dismissal of the claim.  The Court found that defendants had expressly repudiated the plaintiff's ownership claim years prior, when the multi-million copy selling albums were released without attribution to him or the payment of any royalties.  Accordingly, the clock started ticking then.  The Court further found that the defendants were properly awarded their attorney's fees under the Copyright Act, and remanded solely for a determination of the amount of fees available on the appeal.

EMI Awarded $3 million + in legal fees in MP3 Tunes Case

Capitol Records, Inc. v. MP3Tunes, No. 07-cv-9931 (SDNY 11/12/2015) [Doc. 724].

In the MP3Tunes case, the Court awarded the plaintiff record labels and music publishers attorney's fees under the Copyright Act.  Although slightly reduced (e.g., because of block billing), plaintiff were awarded just over $3 million in fees and costs.

Sir-Mix-A-Lot Awarded Attorney's Fees For Defeating Copyright Claim

Ford v. Ray, No. 15-0432 (W.D. Wash. Oct. 27, 2015).

After dismissing plaintiff's copyright claim and granting Sir-Mix-A-Lot attorneys fees under 17 USC 505, the Court awarded defendant $20,000 in fees.  The amount awarded was a reduction from the approximately $58,000 sought, based on partially redacted and duplicative time-sheets and avoiding putting the plaintiff in financial ruin.

Attorney's Fees Awarded To Village People Member

Scorpio Music v. Willis, No. 11-cv-1557 (S.D. Cal. filed 9/15/15) [Doc. 280].

In a dispute over the percentage of copyright ownership over the Village People's hit songs (including "YMCA") that went to a jury trial, the Court held that an original member of the group and author (invidivually and jointly) of various songs was entitled to attorney's fees as the prevailing party.  17 USC 505.  The court found that Mr. Willis was the prevailing party and that he achieved a high degree of success: he defeated Plaintiff's claim that he could not unilaterally terminate his grants of copyright under 17 USC 203, prevailed on a number of summary judgment motions brought on the grounds of statute of limitations and laches, and prevailed on 13 of the 24 compositions at trial (including YMCA, the most lucrative).  Specifically, the Court found that granting fees would advance the purposes of the Copyright Act inasmcuh as Mr. Willis was "trying to get back what he transferred to Plaintiffs, parties with superior bargaining power, decades ago.  An award of attorney's fees is justified to encourage authors like Willis to assert their rights to regain their copyright interests and to deter production companies and other transferees of copyright from attempting to interfere with those rights."  Willis sought an award of approximately $527,000, and the Court did not find that an upward or downward adjustment was warranted.  Costs of approximately $3,000 were also taxed.

Jay-Z Awarded Attorney's Fees For Defeating Copyright Claim On Statute Of Limitations Grounds

Mahan v. Roc Nation LLC, Case 1:14-cv-05075-LGS (SDNY filed 07/17/1) [Doc. 81].

After defeating an alleged co-owner's copyright infirngement claims on statute of limitations grounds, the Court awarded Jay-Z and related parties attorney's fees of over $280,000.  The Court found that the Defendants were entitled to attorneys’ fees because Plaintiff’s claims under the Copyright Act were plainly time barred and therefore objectively unreasonable.  The amount of fees requested was reduced by 10%, however, because Plaintiff asserted five total claims, one of which was a state law claim which, unlike the Copyright Act, did not permit a grant of attorney's fees.

Beastie Boys Awarded Attorneys Fees For Copyright Infringement, But Reduced Amount

Beastie Boys v. Monster Engergy, 1:12-cv-06065-PAE (SDNY filed 06/15/15) [Doc. 216].

After succeeding against Monster Energy Drinks at trial, the Court found that the Beastie Boys were entitled to attorney's fees for Monster's willful copyright infringement but not in connection with the Lanham Act violation, which the Court found was not "exceptional".  Additionally, the Court significantly reduced the attorney's fees recoverable to approximately $660,000, from the over $2 million requested.

Partial Attorney's Fees Awarded In MP3Tunes

Capitol Records, Inc. v. MP3Tunes, No. 1:07-cv-09931-WHP-FM (SDNY filed 04/03/15) [Doc. 689]

Record company and music publisher plaintiffs, who succeeded at trial, moved for an award of partial attorneys' fees and costs under the Copyright Act, and pre-judgment and post-judgment interest under Fed. R. Civ. P. 59 against defendant MP3tunes.  The Court granted the motion for partial attorneys' fees, in part, denied the motion for pre-judgment interest, and granted the motion for post-judgment interest.

Bob Marley Heirs Succeed On Appeal In Merchandising Case

Fifty-Six Hope Road Music v. A.V.E.L.A., No 12-17502 (9th Cir. Feb. 20, 2015).

The 9th Circuit Court of Appeals affirmed judgment in favor of Bob Marley's heirs based on defendants' use of Bob Marley's image on t-shirts and other merchandise in a manner likely to cause confusion as to Plaintiffs' sponsorship of approval of the merchandise.  Additionally, the Court found that Defendants have waived several defenses by failing to properly raise them in the district court.  The appellate court also found that the lower court had not abused its discretion in determining defendant's profits and there was a sufficient evidence to find that defendants willfully infringed plaintiff's rights.  Nor did the lower court err in awarding plaintiffs their attorney's fees, as plaintiffs were the prevailing parties, and defendants' conduct was willful.  Plaintiffs also succeeded on their tortious interference claims because Plaintiffs' licensing agent testified that one of Plaintiffs' licensees lost an order intended for Wal-Mart because defendant sold t-shirts there. Defendants did succeed, however, in dismissing the right of publicity claim because under Nevada law a publicity right successor waives its publicity rights when it fails to timely register its rights.

Tejano Music Infringement Claim Fails Because No Access And Not Enough Similarity

Guzman v. Hacienda Records & Recording Studio, Inc., No. 6:12-CV-42, 2014 BL 344493 (S.D. Tex. Dec. 09, 2014).

After a bench trial, the Court dismissed plaintiff's copyright infringement claim because the alleged infringers did not have access to plaintiff's work nor were the two works strikingly similar.  This case is about two Tejano songs -- a hugely popular style of music in Corpus Christi from the 1970s through the 1990s, that is a a fusion of the Mexican and German influences in Texas. Although the Court found that substantial similarity existed between the songs, the Court declined to find the much higher standard of striking similarity, which is necessary for a finding of factual copying without any proof of access.  The Court also found that the evidence did not support a finding that defendants had access to plaintiff's song. The Court concluded that it was purely speculative that anyone associated with defendant heard plaintiff's song on the radio on the occasions when it was actually played, or ever heard it performed live.  "Because [plaintiff] has not shown a reasonable possibility that Defendants had access to his song, he cannot show that they copied it and his copyright infringement claim fails".

11th Cir. Finds Summary Judgment Properly Granted In Favor of BMI And Against Tavern; Adopts 2nd Cir. Davis v. Blige

BMI v. Evie's Tavern Ellenton, Inc., No. 13-15871, 2014 BL 329074 (11th Cir. Nov. 21, 2014).

The 11th Circuit affirmed summary judgment in favor of the performing rights society BMI, rejecting the defendant-tavern's argument that there were questions of material fact as to the copyright ownership of the musical compositions at issue and as to whether defendants were innocent infringers.  With respect to the chain-of-title for the five songs at issue, the court examined each chain of title, and further found that the district court properly found that BMI could be awarded judgment on each song in addition to the copyright holder (generally, the music publisher who owned the copyright).  As BMI agreed to be responsible for all costs and expenses pursuing infringement actions based on the titles that BMI licenses from copyright owners, the number of them to whom summary judgment is granted made no difference in the award of damages, attorneys' fees and costs.  Thus, there was no error in granting summary judgment to the other plaintiffs (the copyright owners) under Fed. R. Civ. P. 61.

As to innocent infringement, the Court affirmed that is not a defense to summary judgment liability, and instead is only a consideration as to the amount of statutory damages to award.  The court also found that an award of attorney's fees was appropriate.  Notably, the 11th Circuit joined the rule adopted by the Second Circuit in Davis v. Blige, 505 F.3d 90, 99 (2d Cir. 2007) that a copyright co-owner may maintain and recover in a copyright infringement action without joining other co-owners.  See fn. 2.

Attorney's Fees Awarded To Defendants In Black Eyed Peas Alleged Infringement Case

Pringle v. Adams, No. 8:10-cv-01656 (C.D. Cal. filed 07/23/14) (Doc. 326).

The Court awarded over $1 million in attorney's fees and costs to multiple defendants who successfully defeated, both at the trial level and on appeal, a copyright infringement claim concerning the Black Eyed Peas song "I've Gotta Feeling."  The Court did not grant all the fees requested, however.

Workshop Agreement Does Not Permit Attorneys Fees Or Indemnification

Bowen v. Paisley, No. 3:13-cv-0414 (M.D. Tenn. June 16, 2014).

The Court held that defendant's counterclaims for breach of contract would proceed, but their counterclaims for indemnification and attorney's fees would be dismissed.  Plaintiff wrote and recorded a song and alleged that two popular country music artists (Brad Paisley and Carrie Underwood) violated her copyright interests.  Plaintiff alleged that defendants gained access to her song when she performed it during a 2008 country music songwriting workshop in Nashville, in which two other defendants served as guest instructors.  Those defendants alleged that s a condition of participation in the workshop, plaintiff signed a consent agreement, in which the plaintiff effectively waived her right to bring the copyright claims asserted, at least as they related to access gained in the workshop.  First, the Court found that the defendants could not assert contractual indemnification under the agreement because it would lead to an "absurd result" of requiring plaintiff to defend the defendants against her own claims.  Second, the Court held that it would permit the defendant's breach of contract claim -- based on a covenant not to sue provision -- to remain, but recognized that the claim would eventually lead to "a doctrinal thicket" as to its viability.  Lastly, the Court held that the attorneys fees claim failed under the language of the contract.

Attorney's Fees Awarded To Madonna In Infringement Action

VMG Salsoul LLC v. Madonna Louise Ciccone et al., No. 2:12-cv-05967 (C.D. Cal. filed Apr. 28, 2014) [Doc. 148].

Madonna and other music-industry defendants were awarded their attorney's fees in a copyright infringement action in which the Court had dismissed plaintiff's claim, finding that the alleged infringement of the musical composition was not sufficiently original to be copyrightable and that any alleged sampling was de minimis.  Although the Court found that the fees and costs were unreasonable and unnecessary to the litigation, and therefore declined to award the full amount requested, the Court nonetheless awarded defendants $670.117.25 in attorneys’ fees and $50,055.00 in costs, pursuant to 17 U.S.C. 505.

Green Day's Use Of Illustration During Concert Was Fair Use, But Attorney's Fees Denied

Seltzer v. Green Day, Inc. et al., No. 11-56573 [D.C. No. 2:10-cv-02103] (9th Cir. Aug. 7, 2013).

The 9th Circuits affirmed summary judgment in favor of the defendants, but vacated the attorney's fees award, in an artist's action alleging violations of the Copyright Act and the Lanham Act relating to the rock band Green Day's unauthorized use of an illustration ("Scream Icon") in the video backdrop of its stage show.

The Court found that use of the illustration in the video backdrop was a fair use under the Copyright Act: it was transformative, the illustration was a widely disseminated work of street art, the illustration was not meaningfully divisible, and the video backdrop did not affect the value of the illustration.  As to the trademark claims, the artist failed to establish any trademark rights.  In vacating the attorney's fees award under the Copyright Act, the Court found that even though defendant was successful on their fair use defense, the plaintiff did not act objectively unreasonably ("there is simply no reason to believe that Seltzer should have known from the outset that his chances of success in this case were slim to none.").

Viacom Denied Attorney's Fees in TM Dispute With Gibson Guitars

Gibson Guitar Corp. v. Viacom Inc'l, Inc., No. 12-cv-10870 (C.D. Cal. July 18, 2013) [Doc. 51].

Plaintiff owns a trademark for the "FLYING V" mark and sued Viacom for trademark infringement relating to SpongeBob Square Pants "alleging that Flying V SpongeBob SquarePants ukuleles have been advertised and distributed without Gibson's authorization".  The Court previously granted Viacom's motion to dismiss for failure to state a claim, and Viacom moved for attorney's fees under the Lanham Act.  The Court denied the motion.  "The court finds that Gibson's case against Viacom is not 'exceptional' in the sense of the Lanham Act. The fact that allegations are insufficient to survive a motion to dismiss does not in itself render a complaint groundless under Lanham Act."

Publisher Denied Attorney's Fees

De Walt v. Jobete Musc Co., No. B240650 (Cal. App. Ct., 2d Dist. filed May 7, 2013).

The California appellate court held that a publisher (related to MoTown) could not recover attorney's fees  in a royalties related suit in which the publisher prevailed because the company didn't move for the fees in the initial trial over copyright-misappropriation claims.

This case arises from an underlying action filed in 2003 by respondents,1 who are the heirs of the late musician and composer Autry De Walt, professionally known as Junior Walker (De Walt), against appellant Jobete Music Co., Inc. (Jobete). In the underlying action, respondents disputed the ownership of renewal copyrights of certain songs and sought a declaration as to which of several contracts between De Walt and Jobete were applicable. A jury found the most recent contract governed, and judgment was entered in favor of Jobete and affirmed on appeal. Although Jobete filed a memorandum of costs in the underlying action, it did not seek its attorney fees. Instead, over the next several years, Jobete unilaterally offset from the royalties payable to respondents amounts it claimed were incurred as attorney fees in the underlying action. In 2009, respondents sued Jobete for breach of contract and conversion. Following a bench trial based on stipulated evidence, the trial court entered judgment in favor of respondents, finding that Jobete was barred from seeking its attorney fees by not pursuing them in the underlying action. We agree that Jobete is no longer entitled to seek its attorney fees. We affirm the judgment in favor of respondents except as to their conversion claim.

Songwriter's Widow Sanctioned; Default Judgments In Favor Of Assignee Not Vacated

Bridgeport Music, et al. v. Smith, et al., No. 12-1523 (6th Cir. May 1, 2013).

This action is based on default judgments entered in 2004 that plaintiff obtained against defendants for copyright infringement of the 1974 song "You’re Getting a Little Too Smart" ("Smart").  Plaintiff was the assignee of the songwriter's rights in the song.  In 2011, the songwriter's widow moved to vacate the default judgments, arguing that she, not Plaintiffs, was the legal owner of the copyright by operation of law at the time the lawsuit was filed.  The district court denied the motion, as well as her motion for reconsideration, and the widow appealed.  The Sixth Circuit affirmed, and granted Plaintiffs motion for damages and costs.

After stating the relevant facts, the Court began its analysis by determining who was entitled to what copyright interests in “Smart” under the renewal provisions of the Copyright Act:  "(1) Based on their assigned interest in the initial copyright, Plaintiffs had the right to sue for infringing acts occurring up through December 31, 2002, see 17 U.S.C. § 501(b) ..., and they had three years after that date to bring a cause of action. ... (2) Because Tilmon died prior to the renewal term, Tilmon’s contingency interest in the renewal copyright passed to Tilmon-Jones and Tilmon’s children, on January 1, 2003."

Next, the Court considered whether the widow, as a non-party to the litigation in which the judgments were entered, had standing.  The Court determined she did not have standing to bring a Fed. R. Civ. P. 60(b) motion.  Rule 60(b) provides in pertinent part that a “court may relieve a party or its legal representative” from a final judgment.  Nor was the widow in privity, or were here interests "strongly affected."

The Court also found that the widow's motion to vacate the judgments was untimely under Fed. R. Civ. P. 60(c)(1), which requires such motion be made within a reasonable period of time.  She did not file the motions until 6 years after constructive notice of the judgments (due to recordation of the judgments with the Copyright Office), and 7 years after they were entered.  The motions also were barred by a release the widow signed in another action.

Lastly, the Sixth Circuit sanctioned the widow and her counsel, pursuant to Fed. R. App. P. 38 and 28 U.S.C. § 1912.  "The conduct of Tilmon-Jones and her counsel was objectively and patently meritless and a waste of judicial resources. Tilmon-Jones maintains that her appeal is not frivolous because the question of whether a nonparty has standing under Fed. R. Civ. P. 60(b) was not obviously without merit. This may be true, but it does not obviate the fact that her appeal was utterly without merit because it was untimely and barred by a release. We find that this appeal is frivolous and that sanctions are appropriate."

No Infringement Of Plot

Bolfrass v Warner Music Group, No. 1:12-cv-06648-LLS (S.D.N.Y. filed 04/02/2013) [Doc. 13].

Plaintiff alleged that a song published by defendant Warner Music ("Warner") infringed his copyright on his screenplay, in violation of the Copyright Act of 1976.  Warner moved to dismiss and for attorneys fees.  Warner's motion to dismiss was granted and its application for the award of attorney's s and costs was denied.

First, the Court examined whether Plaintiff's "plot" was afforded copyright protection.  The Court found that "the similarity two works here lies in their concepts, abstracted to a high degree of generality. Both are based on a concept of planetary breakdown and space travel, but their treatment is very different."  It concluded that "Because the lyrics of "Exogenesis: Symphony" do not express a plot, they do not infringe on "Panspermia: ExoGenesis."  The online liner notes a plot, but one that is far too abstract and general to infringe on Bollfrass' copyright."  Accordingly, the copyright claim was dismissed.

Second, the Court examined Plaintiff's claim for unfair competition, and found that it was preempted by the Copyright Act.  "Bollfrass' claim for unfair competition based only on Jarner's distribution of the allegedly
infringing song is therefore preempted by the Copyright Act.".

Third, the Court examined Warner's request for attorneys fees.  Ultimately, the request was denied on a "close call."