witnesses. However, the Court directed the attorneys on January
3, 1990 to provide expert reports to their adversaries by
February 1, 1990. Plaintiff did not comply. At the final
pre-trial conference on February 20, 1990 the Court nonetheless
granted plaintiff's attorney a continuance until the next day
to supply those reports. The document produced the next day was
wholly inadequate as an expert's report and the Court therefore
determined that to allow plaintiff's experts to testify would
be unfairly prejudicial to defendants.
Finally, plaintiff argues that the Court erred in its
findings of fact. None of the issues raised by plaintiff,
however, were overlooked by the Court. Plaintiff simply
disagrees with the Court's findings rather than pointing to
"manifest errors of fact." There is therefore no basis for
granting a new trial. Rather than relitigate matters already
considered by this Court, plaintiff should address his
arguments to the Court of Appeals for the Second Circuit.
Accordingly, plaintiff's motion for a new trial is denied.
2. The Motion to Vacate the Award of Costs and Attorney's Fees
Although 17 U.S.C. § 505 expressly permits "a reasonable
attorney's fee to the prevailing party as part of the costs,"
the Second Circuit has limited the circumstances under which it
is appropriate to award attorneys' fees to a prevailing
defendant. Thus, defendants should only receive attorney's fees
when the plaintiff's claim is "objectively without arguable
merit." Diamond v. Am-Law Publishing Corp., 745 F.2d 142, 148
(2d Cir. 1984). In awarding defendants attorney's fees in the
present case, the Court was not provided with case law and did
not consider this interpretation of Section 505 by the Court of
Appeals. It does so now for the first time.
For several reasons, the Court is unable to say that
plaintiff's claim in this case was "objectively without
arguable merit." While ultimately determined to be unfounded,
the claim was colorable at the time it originally was brought.
As plaintiff points out, the Court's decision on the merits was
based in large part on two cases, Community for Creative
Non-Violence v. Reid, 846 F.2d 1485 (D.C. Cir. 1988), aff'd,
___ U.S. ___, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989), and
Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc.,
609 F. Supp. 1307 (E.D.Pa. 1985), aff'd, 797 F.2d 1222 (3d Cir.
1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d
831 (1987), both of which were decided after plaintiff's action
was commenced. The Supreme Court's discussion in the Reid
case, in particular, clarified prior decisions with respect to
the scope of "work for hire" as defined in the Copyright Law of
1976. Plaintiff's claim to the artistic work in question is
found to be colorable under the law as it existed prior to that
decision. In light of these circumstances, it would be
inappropriate to award attorney's fees to defendants for the
period prior to the Supreme Court's decision in Reid. The total
amount of fees requested gives added support to this
Since plaintiff did elect to proceed to trial after these
cases adverse to his position were reported, there remains the
question of the substantial fees incurred by defendants
subsequent to Reid and Whelan. It is debatable whether an
attorney who objectively evaluated plaintiff's claim at that
time would have concluded that the case had merit and should be
brought to trial. While this Court is reluctant, in most
circumstances, to question the objectivity of an attorney, it
appears that the personal relationship between plaintiff and
his attorney may have clouded the attorney's judgment.
The problem of lack of objectivity is well-known in the legal
profession, and gave rise to the ancient lawyer's adage "a
lawyer who represents himself has a fool for a client." An
attorney who represents a close relative, or some other person
in whom the attorney has an emotional or personal stake, is
similarly in a poor position to make an objective determination
of the likelihood of prevailing. The Court is inclined to
adhere to its practice of giving
attorneys admitted to the bar of this Court the benefit of the
doubt. On the other hand, counsel's close identification with
plaintiff undoubtedly influenced her decision to bring this
case to trial, and to that extent contributed to defendants'
substantial legal expenses. Although these countervailing
factors are difficult to balance, it is determined that
plaintiff's claim was not "objectively without arguable merit,"
and that plaintiff's counsel was able to make a good faith
presentation of plaintiff's claim.
Accordingly, plaintiff's motion to vacate the award of
attorneys' fees and costs is granted.
Plaintiff's motion for a new trial is denied, and plaintiff's
motion to vacate the award of attorneys' fees and costs is