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March 30, 2003


The opinion of the court was delivered by: Barbara S. Jones, United States District Judge


This motion for attorneys' fees and costs is before the Court following its September 18, 2001 decision granting summary judgment to Defendants Cable News Network, Inc., LP, LLLP d/b/a CNN ("CNN"), American Broadcasting Network ("ABC") and CBS Corporation ("CBS").

In this action, Plaintiff Video-Cinema Films, Inc. ("Video-Cinema") asserted a claim for copyright infringement under 17 U.S.C. § 101 and for common-law unfair competition against CNN, ABC and CBS (collectively, "Defendants"),*fn1 for their nationwide broadcasts of excerpted footage from the motion picture "The Story of G.I. Joe" ("G.I. Joe") after the death of actor Robert Mitchum, who had appeared in that film. Plaintiff claimed that Defendants violated the Copyright Act when they broadcasted this footage as part of an obituary for the actor. In granting summary judgment in favor of Defendants, this Court found that Defendants produced news reports that served the public interest in accordance with the Copyright Act's fair use provision. This Court specifically noted that the public would be hindered by denying Defendants' fair use defense and that the obituaries in question contained information which, if the general public did not find interesting, at the very least movie aficionados across the country would find informative.

On October 17, 2001, Defendants filed this motion to recover attorneys' fees and costs pursuant to 17 U.S.C. § 505, as the prevailing parties in these related copyright infringement actions.


Pursuant to Section 505 of the Copyright Act, the Court "may . . . award a reasonable attorney's fee to the prevailing party as part of the costs." 17 U.S.C. § 505. It is within the Court's discretion whether or not to grant such an award. Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994). While there is no precise rule or formula for the Court to follow in exercising this discretion, some of the factors the Court may consider are "frivolousness, motivation, objective unreasonableness (in both 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 534 n. 19; Matthew Bender & Co. v. West Pub. Co., 240 F.3d 116, 121 (2d Cir. 2001). of these factors, objective unreasonableness is a significant factor and should be given substantial weight in determining whether fees are warranted. Matthew Bender & Co. 240 F.3d. at 122; Earth Flag Ltd. v. Alamo Flag Co., 154 F. Supp.2d 663, 666 (S.D.N.Y. 2001). Thus, the Court may award attorney's fees solely upon a showing that Plaintiff's position is objectively unreasonable. See Adsani v. Miller, No. 94 Civ. 9131, 1996 WL 531858, *13 (S.D.N.Y. Sept. 19, 199). In appropriate cases, however, the presence of other factors may justify an award despite a finding that the party's arguments were reasonable. Matthew Bender & Co., 240 F.3d at 122. Ultimately, all of these factors are subservient to the broader question of whether an award of fees furthers the policies of the Copyright Act. Id. at 121.

Plaintiff's Opposition to Attorneys' Fees

In Plaintiff's opposition to Defendants' motion for attorneys' fees, Plaintiff never addresses the merits of Defendants' arguments for attorneys' fees.*fn2 Instead, in Point One of its opposition to Defendants' motion for attorneys' fees, Plaintiff challenges this Court's jurisdiction to consider Defendants' application for attorneys' fees' on the ground that it is untimely because the case was closed when Defendants made this motion.

Fed.R.Civ.P. 54(d)(2)(B) reads in pertinent part: "Unless otherwise provided by statute or court order, [a] motion [for attorneys' fees] must be filed and served no later than 14 days after entry of the judgment. . . ." For purposes of Fed.R.Civ.P. 54, the 14-day statute of limitations does not begin to run until the date the judgment is entered by the Clerk of the Court, here October 3, 2001. See Gardner v. Catering by Henry Smith, Inc., 205 F. Supp.2d 49, 51 (E.D.N.Y. 2002); see also Independent Living Aids v. Maxi-Aids Inc., 208 F. Supp.2d 387, 395 (E.D.N.Y. 1998); Fase v. Seafarers Welfare & Pension Plan, 79 F.R.D. 363, 364 (E.D.N.Y. 1978). Because Defendants' filed their motion for an award of attorneys' fees on October 17, 2001, within 14 days of the entry of the judgment, Defendants' motion for attorneys' fees was timely pursuant to Fed.R. Civ. P. 54(d)(2)(B).*fn3

In Point Two, its final point in opposition to Defendants' motion for attorneys' fees', Plaintiff requested that the Court sanction Defendants for allegedly filing documents containing false and misleading statements under 28 U.S.C. § 1927. This claim is without merit and is an example of the frivolous nature of Plaintiff's arguments. Defendants' Notice of Motion was correctly dated and file stamped October 17, 2001. The certificates of service and the last page of the memorandum of law were incorrectly dated September 17, 2001. As a result, Plaintiff contends that Defendants backdated these documents in an attempt to mislead the Court. Defendants claim it was merely a typographical error, which is obviously correct. Were the Court to credit Plaintiff's argument, Defendants would have submitted their fee application before the Court issued its judgment.

Plaintiff has utterly failed to advance any meritorious reason in opposition to the Defendants' application for their legal fees and costs pursuant to 17 U.S.C. § 505. Accordingly, for this reason and for the additional reasons set forth below, the Court grants Defendants' motion for attorneys' fees and costs.

Objective Unreasonableness of Plaintiff's Position

Throughout the underlying litigation, Plaintiff made objectively unreasonable factual and legal arguments. For instance, Point One of Plaintiff's brief in opposition to Defendants' motion for summary judgment was that Defendants' motions were based on unsworn statements by counsel, not supported by personal knowledge. As noted in this Court's decision, this argument was without merit and the affidavits in question were in fact made from the personal knowledge of the declarant or affiant. Furthermore, Defendants' attorneys' declarations did not contain allegations in support of their motions, but simply attached exhibits in support of their statements of facts and memoranda of law. These facts were clear from even a cursory reading of the declarations and affidavits. As such, Plaintiff's argument was objectively unreasonable.

With respect to Defendants' fair use defense, Plaintiff first generally asserted that the fair use defense must fail because the use of copyrighted material must be "essential" or an actual "necessity" to qualify as fair use. Plaintiff claimed that Defendants' use of the film footage did not meet this requirement because Defendants could have used still photos of Mitchum from the public domain instead of the film clip. None of the authority cited by Plaintiff, however, stood for the proposition that any use of the copyrighted material must be essential or an actual necessity to qualify as fair use. In fact, the portions of the opinions upon which Plaintiff relied to support this proposition did not even address the fair use doctrine, but instead concerned whether a First Amendment privilege extends the use of copyright material beyond what is permitted by the fair use defense. See Roy Export Company Establishment of Vaduz, Liechtenstein v. Columbia Broadcasting System, Inc., 672 F.2d 1095, 1099-1100 (2d ...

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