licensing fee might make sense in another context, it does not
make sense here. Getaped would not be willing to let a direct
competitor use an exact duplicate of its site for such a small
Unfortunately, insufficient proof was offered as to what an
appropriate licensing fee should be between these competitors.
Without further evidence on this issue, any award of a license
fee would be speculative and inappropriate. See Abeshouse, 754
F.2d at 470 (speculative damages awards not permitted). Since
Getaped is entitled to statutory damages as discussed above, and
has in fact elected to receive statutory damages as discussed
immediately below, I do not need to take further evidence on the
licensing fee issue.
C. Election of Damages
The Copyright Act entitles plaintiffs to chose between
recovery of actual and statutory damages any time before the
court renders its final judgment. 17 U.S.C. § 504(c)(1). Once a
plaintiff elects statutory damages, he or she gives up the right
to seek actual damages. "[A]lthough the election may be made at
any time before final judgment is rendered, once a plaintiff
elects statutory damages he may no longer seek actual damages."
Twin Peaks Productions, 996 F.2d at 1380.
Here, Getaped originally sought actual damages or, in the
alternative, statutory damages. However, in its Proposed
Findings of Fact and Conclusions of Law submitted after the
damages proceeding, Getaped elected recovery of statutory
damages. This election is binding on Getaped for the damages
inquest and all future proceedings. Cf. Twin Peaks
Productions, 996 F.2d at 1380 ("Once a plaintiff has elected
statutory damages, it has given up the right to seek actual
damages and may not renew that right on appeal.").
II. Attorney's Fees and Costs
Section 505 of the Copyright Act provides that a court may
award "full costs," including reasonable attorney's fees.
17 U.S.C. § 505. As discussed in the context of statutory damages,
Getaped qualifies for attorney's fees and costs because it
registered its work with the Copyright Office within three
months of publication, pursuant to 17 U.S.C. § 412(2). An award
of attorney's fees under Section 505 is discretionary, though
any award must be consistent with the purposes of the Copyright
Act: compensation and deterrence. See Fogerty v. Fantasy,
Inc., 510 U.S. 517, 534 & n. 19, 114 S.Ct. 1023, 127 L.Ed.2d
455 (1994). A decision to award fees should be based on factors
such as "frivolousness, motivation, objective unreasonableness
(both in the factual and in the legal components of the case)
and the need in particular circumstances to advance
considerations of compensation and deterrence." Id. at 535 n.
19, 114 S.Ct. 1023 (internal quotation marks omitted); see also
Crescent Publishing Group, Inc. v. Playboy Enterprises, Inc.,
246 F.3d 142, 147 (2d Cir. 2001). An award of attorney's fees is
justified, inter alia, where the infringement was willful, as
here. Kepner-Tregoe, Inc. v. Vroom, 186 F.3d 283, 289 (2d Cir.
The Second Circuit has adopted the lodestar method to
calculate the reasonableness of attorney's fees under Section
505. Crescent Publishing, 246 F.3d at 150. This method
emphasizes a comparison to rates of lawyers of similar skill and
experience in the community. See id. Calculating a lodestar
figure requires consideration of such factors as (1) time and
labor; (2) novelty and difficulty of the questions presented;
(3) skills requisite to perform the legal service properly; (4)
preclusion of other employment by the attorney due to
acceptance of the case; (5) the customary fee; (6) whether the
fee is fixed or contingent; (7) the time limitations imposed by
the client or the circumstances; (8) the amount involved and the
results obtained; (9) the experience, reputation, and ability of
the attorneys; (10) the undesirability of the case; (11) the
nature and length of the professional relationship with the
client; and (12) awards in similar cases. See United States
Football League v. National Football League, 887 F.2d 408, 415
(2d Cir. 1989) (citing Johnson v. Georgia Highway Express,
Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)). Many of these
factors are subsumed within the initial calculation of the
attorney's hours and hourly rate. Id.
Getaped claims $16,015 for attorney's fees and costs,
supported by an affidavit attaching the actual bills from its
attorneys. In this case, the market of willing seller (i.e.,
provider of legal services) and willing buyer (i.e., the client)
is a sufficient test of reasonableness: the requested fee award
does not seem out of proportion to the skill and work required
and is a relatively small amount compared to modern litigation
costs, even in copyright cases. See, e.g., Nihon Keizai
Shimbun, Inc. v. Comline Business Data, Inc., 166 F.3d 65, 74
(2d Cir. 1999) ($200,000 attorney's fee award); In Design v.
Lauren Knitwear Corp., 782 F. Supp. 824, 836-37 (S.D.N.Y. 1991)
($103,000 attorney's fee award). Although defendants have lodged
some objections to the amount claimed, their objections are not
In awarding Getaped $30,000 in statutory damages, I took into
account Getaped's ability also to recover reasonable attorney's
fees from defendants. Recovery should include Getaped's
reasonable costs of vindicating its rights. Getaped's request
for $16,015 in attorney's fees and costs is reasonable and is
For the reasons stated, I modify Judge Ellis' Report and
Recommendation, and hold that plaintiff may recover $30,000 in
statutory damages, plus attorney's fees and costs of $16,015.
The Clerk shall enter judgment for plaintiff in these amounts.