recalls modifying the lyrics in response to a suggestion by Father Kelly.
Assuming Repp's recollection concerning the circumstances surrounding his creation of "Till You" to be accurate, the Court finds that this evidence does not warrant dismissing defendants' counterclaims as a matter of law. Rather, a reasonable jury could conclude that Repp, having been exposed to "Close Every Door" prior to composing "Till You," subconsciously copied the musical and lyrical phrases at issue. Thus, the fact that Repp recalls details of the day in which he composed "Till You" does not satisfy his burden of demonstrating the absence of any genuine issues of material fact with respect to defendants' counterclaims. See, e.g., Gund, Inc. v. Russ Berrie and Co., 701 F. Supp. at 1018 (finding in context of preliminary injunction motion that evidence that infringer used two other toys as models did not preclude copying where access was established); American Greetings Corp. v. Easter Unlimited, Inc., 579 F. Supp. 607, 613 (S.D.N.Y. 1983) (holding, after trial, that evidence of independent creation was "not of such persuasiveness as to rebut an inference of copying based on access and similarity").
In any event, the Court agrees with defendants that Repp's allegation of independent creation is at odds with his complaint and deposition testimony in this action. Thus, despite the fact that Repp now contends that he composed "Till You" in September 1976, the complaint alleges that he created "Till You" between January 1 and March 17, 1978. Although Repp explained this discrepancy at his deposition by indicating that he completed "Till You" between January and March 1978, see Repp Dep. at 421, a genuine issue of material fact exists whether Repp created "Till You" in 1976 or 1978.
Furthermore, at his deposition, Repp indicated that he recalled composing the music for "Till You" in the bedroom of his home and that he drafted the lyrics sometime between September 1976 and March 1978. See Repp Dep. at 456, 468. Repp also indicated that he did not recall whether he (1) made a tape of the song "Till You" in September 1976, id. at 777; or (2) played the song for Father Kelly, although he indicated that it was his habit to do so, id. at 479. Repp also claimed at his deposition that he lacked any specific memory of the circumstances surrounding the creation of "Till You." Id. at 455, 461, 472-73, 777. In light of the inconsistencies between (1) Repp's allegation of independent creation; and (2) his prior deposition testimony and the allegations of the complaint, the Court finds that material issues of fact preclude summary judgment. See, e.g., Eckes v. Card Prices Update, 736 F.2d 859, 863 (2d Cir. 1984) (finding a scarcity of credible, non-self-serving proof of independent creation).
III. Statute of Limitations
Plaintiffs also contend that defendants' counterclaims should be dismissed because they are time-barred. Defendants filed their counterclaims in October 1991. Pursuant to the Copyright Act, no civil action shall be maintained unless it is commenced within three years "after the claim accrued." 17 U.S.C. § 507. The period of limitations begins to run on the date of the last act of infringement. Woods Hole Oceanographic Inst. v. Goldman, 228 U.S.P.Q. (BNA) 874, 84 Civ. 6307, 1985 WL 5968, at *2 (S.D.N.Y. July 23, 1985). Thus, to be timely, defendants must show evidence of exploitation of "Till You" within the three-year period commencing in October 1988.
Defendants complain that plaintiffs' attempt to use the limitations period as a basis for summary judgment ignores the Court's order bifurcating issues of liability and damages, as well as the parties' agreement to limit discovery to the period 1978 through 1985. As defendants apparently argue that more discovery is necessary to respond to plaintiffs' limitations argument, the Court shall reserve judgment pending further discovery on this issue. Accordingly, the Court orders that discovery shall be reopened for the limited purpose of determining whether plaintiffs have exploited "Till You" during the applicable limitations period. The parties shall complete discovery on this issue by September 1, 1995.
IV. Attorneys' Fees and Costs
Defendants seek an order awarding them attorneys' fees and costs pursuant to 17 U.S.C. § 505. Section 505 states:
In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs.
17 U.S.C. § 505 (1994). Pursuant to this statute, prevailing plaintiffs and defendants are to be treated alike, "but attorney's fees are to be awarded to prevailing parties only as a matter of the court's discretion." Fogerty v. Fantasy, Inc., 127 L. Ed. 2d 455, U.S. 114 S. Ct. 1023, 1033 (1994). A defendant is considered a "prevailing party" when he successfully defends against the significant claims actually litigated in the action. Screenlife Establishment v. Tower Video, Inc., 868 F. Supp. 47, 50 (S.D.N.Y. 1994).
As this action has not yet been fully resolved, defendants' motion for costs and fees is premature. Accordingly, the Court shall postpone its ruling on the propriety of a fee award pending final disposition of this action. See Agee v. Paramount Communications, Inc., 869 F. Supp. 209, 213 (S.D.N.Y. 1994) (staying motion for attorneys' fees pending plaintiff's appeal).
For the reasons set forth above, plaintiffs' motion for summary judgment dismissing defendants' counterclaims on the grounds that (1) defendants cannot prove that Repp had access to the song "Close Every Door" prior to composing "Till You;" (2) the songs "Till You" and "Close Every Door" are not substantially similar as a matter of law; and (3) defendants cannot contradict plaintiffs' evidence of independent creation of "Till You" is denied. The Court shall reserve judgment on plaintiffs' motion for summary judgment dismissing defendants' counterclaims on the grounds of timeliness pending completion of discovery on this issue. The Court orders that discovery be reopened until September 1, 1995 for the limited purpose of determining whether plaintiffs exploited the song "Till You" during the applicable limitations period. Defendants then may submit a proffer of evidence by September 15, 1995. Plaintiffs shall submit a response by September 22, 1995. Finally, defendants' motion for costs and attorneys' fees is stayed pending final resolution of this action. SO ORDERED.
SHIRLEY WOHL KRAM
UNITED STATES DISTRICT JUDGE
Dated: New York, New York
July 19, 1995