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United States District Court, S.D. New York

February 3, 2004.


The opinion of the court was delivered by: BARBARA JONES, District Judge


Plaintiff Video-Cinema Films, Inc. ("Video-Cinema") sued Defendants Cable News Network, Inc. LLP, LLLP, d/b/a CNN ("CNN"), American Broadcast Network ("ABC") and CBS Broadcasting Inc. ("CBS"), claiming that the Defendants Page 2 infringed Plaintiff's copyright, pursuant to 17 U.S.C. § 101, and unfairly competed with Plaintiff when they broadcasted nationally excerpted footage from the motion picture "The Story of G.I. Joe" after the death of actor Robert Mitchum, who had appeared in that film. The Court granted summary judgment to the Defendants on September 18, 2001. Video-Cinema Films, Inc. v. Cable News Network, Inc., 2001 WL 1154625 (S.D.N.Y. Sept. 18, 2003), as amended, 2001 WL 1518264 (S.D.N.Y. Nov 28, 2001).

Following this decision, Defendants submitted an application for legal fees jointly "to conserve judicial resources," and to avoid unnecessary and duplicative work and costs. Video-Cinema Films, Inc. v. Cable News Network, Inc., 2003 WL 1701904, *1 (S.D.N.Y. Mar. 31, 2003). The Court ruled in favor of the Defendants on March 31, 2003 ("Fee Decision"). Id. In reaching its decision to award fees and costs to Defendants, this Court noted that " [t]hroughout the underlying litigation, Plaintiff made objectively unreasonable factual and legal arguments." Id. at *2 (citing several arguments that the Court found to be without merit).

  Presently before the Court are the motions to determine the exact amount of attorneys' fees and costs Page 3

  Plaintiff will pay to Defendants pursuant to the Fee Decision. See id.


  Section 505 of the Copyright Act provides that:

[i]n 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.

  In determining what constitutes a reasonable fee award under Section 505, courts in this circuit frequently apply the "lodestar" method. See Crescent Pub'g Group, Inc. v. Playboy Enters., Inc., 246 F.3d 142, 146, 150 (2d Cir. 2001); see generally Yurman Designs, Inc. v. PAJ, Inc., 125 F. Supp.2d 54 (S.D.N.Y. 2000). Under this method, "fees are determined by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate." Earth Flag Ltd, v. Alamo Flag Co., 154 F. Supp.2d 663, 668-69 (S.D.N.Y. 2001) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)); see also Savoie v. Merchants Bank, 166 F.3d 456, 460 (2d Cir. 1999).

  Rates are deemed reasonable when they are "commensurate with the rates prevailing in the community for similar services by lawyers of reasonably comparable Page 4 skill, experience and reputation." Yurman Designs, 125 F. Supp.2d at 58; see also Crescent Publ'g Group, 246 F.3d at 150-51. Some courts have considered various publication surveys of billing rates, such as the National Law Journal's annual survey of rates charged by the nation's 250 largest law firms and the billing rate surveys conducted by the American Intellectual Property Law Association ("AIPLA"). See, e.g., Yurman Designs, 125 F. Supp.2d at 55-58; Celebrity Serv. Int'l, Inc. v. Celebrity World, Inc., 9 U.S.P.Q.2d 1673, 1687 (S.D.N.Y. 1988). Courts also may consider the billing rates approved in comparable cases, see, e.g., Luciano v. Olsten Corp., 109 F.3d 111, 115-16 (2d Cir. 1997); New York State Nat'l Org. for Women v. Pataki, 2003 WL 2006608, *2 (S.D.N.Y. Apr. 30, 2003), and may also rely on their own knowledge of current market rates for attorneys of similar skill and experience. See Screenlife Establishment v. Tower Video, Inc., 868 F. Supp. 47, 53 (S.D.N.Y. 1994).

  Fee awards should also reflect the skill of the attorneys and the results achieved. Earth Flag Ltd., 154 F. Supp.2d at 669. With respect to the "results achieved" aspect, courts have repeatedly stressed that success is to be measured by whether important copyright policies, such as the fair use doctrine, have been advanced by the party's Page 5 actions, not by mere financial gain or by the amount at issue. See Crescent Publ'g Group, 246 F.3d at 150 ("Because copyright actions may not always result in high damage awards, for instance if the commercial value of the work is minimal . . . an objective measure such as the lodestar seems the most effective method in enabling parties to retain competent counsel.").

  The Court finds that the hours claimed by all the Defendants are reasonable, especially in light of the protracted nature of the litigation and the objectively unreasonable arguments made by the Plaintiff, but modifies each Defendant's requested reward, as explained more fully herein.*fn1 Cf. id., 246 F.3d at 147, 150.

 1. CNN

  CNN, through its counsel Davis Wright Tremaine LLP ("DWT"), seeks the award of attorney's fees and costs in the amount of $282,855 ($236,439 in fees and $21,045 in costs for all legal work performed in the underlying action, and $24,567 in fees and $804 in costs for all legal work performed in the fee proceedings). Page 6

  a. DWT's Billing Rates

  One partner, two associates, and several paralegals at DTW, a national law firm of more than 300 attorneys, worked on this litigation out of DWT's New York office since the case's inception in October 1998 through the summary judgment decision in October 2001. (Balin Decl. at 10-11). DWT has a sizable media law and intellectual property department and represents numerous high-profile clients in copyright, amongst other types, of litigations. (Id. at 11, Ex. 11). The specific attorneys who worked on this matter are very well-educated, well-credentialed and experienced in IP litigation. (Id. at 11-14; Exs. 12-14).

  From October 1998 until June 1999, DWT charged CNN on all the matters it handled for CNN*fn2 the standard billing rates of the partners, associates and paralegals working at the firm. (Id. at 14) From June 1999 through December 1999, under a "sliding scale volume" arrangement, the rates billed were discounted by 5%, then 8%, then up to 10% from the standard rates. (Id.). Thereafter, a new arrangement took affect, whereby DWT's standard fees were flatly discounted by 10%, from January 2000 through mid-2001, and Page 7 then modified only for partner's billing to a 13% discount through December 2002. (Id. 14-15).

  For instance,*fn3 in 2000, the per hour rates were as follows: the partner's standard rate was $295 and billed rate to CNN was $265; the two associates' standard rates were $240 and $200, and billed rate to CNN was $216 and $180 respectively, the paralegals' standard billing rate was $120 and billed rate to CNN was $108. (Id. at 15; Ex. 6).

  The Court finds that DWT's billing rates are reasonable for several reasons. First, these rates are commensurate with the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation. Cf. Yurman Designs, 125 F. Supp.2d at 58. Accordingly to the AIPLA surveys, DWT's billing rates are below the median rates charged by other New York law firms of similar size and copyright litigation experience. (See Balin Decl. Exs. 15-17). For example, in 2000, the median billing for New York City intellectual property law firms were $370 per hour for partners and $250 per hour for associates, which is at or above DWT attorneys' rates. (See id. Ex. 16; see also Ex. 18 (showing Page 8 that 80% of New York law firms paralegals rates ranged from $105 to $150)).

  Second, DWT's billing rates are also below the rates awarded New York counsel in similar intellectual property litigations. Cf. Yurman Designs, 125 F. Supp.2d at 55-58 (approving and awarding average billing rates of $520 for partners, $278 for associates, and $162 for paralegals for the year 1999); Yamanouchi Pharmaceutical Co. v. Danbury Pharmacal, Inc., 51 F. Supp.2d 302, 305 (S.D.N.Y. 1999)(finding 1998 partner billing rates of $350 and $390 "ball-park reasonable"). Third, the Court, from its own knowledge of prevailing billing rates, finds DWT's rates to be reasonable.*fn4

  Therefore, the Court finds that the rates billed by DWT's attorneys and paralegals are reasonable.

  b. Time Spent by DWT

  DWT invoiced 1,057 hours of work for all of its employees involved in this litigation. The Court finds this amount of time is reasonable for this protracted litigation that spanned three years and included motions, depositions, Page 9 and discovery requests and disputes. See Ballin Dec. at 25-40. DWT's time was also undoubtedly multiplied by Plaintiff's numerous unreasonable claims and arguments. See Video-Cinema Films, 2003 WL 1701904, at *2-5. Moreover, it is clear from the records supplied by DWT that, in addition to its discounted rates, it also wrote off more than 72 hours of work.*fn5 (Ballin Dec. Exs. 4-6). Accordingly, the Court finds that the number of hours invoiced by DWT reasonable.

  Plaintiff does not directly challenge the reasonableness of total hours DWT billed, but argues that Plaintiff should not have to pay for the hours spent in internal conferences at DWT, and conferences and communications between DWT and the other Defendants. (Seltzer's CNN Rep. at 4, 8). Plaintiff offers no legal authority for this contention, and the Court finds that time spent strategizing, both internally and with other parties who are litigating the same claims, is legitimate so long as the time is not excessive. Here, the time spent Page 10 was not excessive, and the Court therefore finds that these hours are compensable.

  Plaintiff also argues that DWT's computer records are not contemporaneous time records of the legal work performed and that they should therefore be disregarded. The Court does not agree.

  In order to evaluate the exact compensation to order, a court should examine contemporary time records that "specify, for each attorney, the date, the hours expended, and the nature of the work done." New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983). Original time sheets, however, are not required; computer print-outs of the pertinent entries, when accompanied with an affidavit, are sufficient. See Tri-Star Pictures v. Unger, 42 F. Supp.2d 296, 302-03 (S.D.N.Y. 1999).

  In this case, it is clear that the records submitted by DWT qualify as contemporaneous time records. DWT provided the Court with extensive records of its time entries (Ballin Dec. Exs. 4-5) and its invoices (Ex. 6). The records show the date on which the services were performed, the hours spent and the nature of the activity performed. Cf. New York State Ass'n for Retarded Children, 711 F.2d at 1147-48. Video-Cinema's argument that such Page 11 documentation is inadequate is both unsupported and directly contrary to prevailing law. See also Auscape v. National Geographic Society, 2003 WL 21976400, *3 (S.D.N.Y. Aug. 19, 2003) ("[Counsel] has submitted a printout from what appears to be its counsels' billing software which contains all the required information. Such a submission clearly meets the evidentiary threshold for the recovery of attorneys' fees.").

  Therefore, the Court finds the hours, as evidenced by the records produced with DWT's fee application, reasonable.

  c. Results Achieved

  With respect to the final lodestar factor, the results achieved, it is clear to the Court that DWT, and indeed, all of the Defendants,*fn6 achieved significant success for several reasons. First, Plaintiff's claims against CNN were dismissed on summary judgment. Second, this litigation advanced the important copyright policy of "fair use," and serves as precedent protecting similarly-situated news organizations from future infringement claims arising from their practice of making reasonable use of short film excerpts in news stories. Page 12

  d. The Billing Agreement

  Even though the Court finds DWT's hourly rates reasonable, it declines to award the full amount of fees that DWT requests because CNN did not pay this amount. CNN entered into a billing agreement in September 1999, approximately one year after the litigation began. As of that time, CNN had already been billed $95,928.69 in fees alone. The agreement capped DWT's fees going forward, through summary judgment, at $20,000. CNN argues that this agreement should not be controlling and that the Court should award it the "reasonable" fees it was charging CNN on the other matters it was handling for them.

  In Crescent Publishing Group, Inc. v. Playboy Enterprises, Inc., the Second Circuit stated that although the "lodestar method suggests that the prevailing rate in the community should trump any agreement for a lower rate made between the client and its private counsel," a court should also be careful not to award a fee that could be considered a "penalty." Crescent Publ'g Group, 246 F.3d at 150-51. Similarly, the Court indicated that although "[i]n some instances, the actual billing arrangement may not be reasonable," courts should nonetheless be mindful that "the billing arrangement is a significant . . . factor in determining what fee is `reasonable.'" Id. at 151. Most Page 13 importantly, the Court warned that a fee award should not amount to a windfall for the prevailing party. See id.

  The Court finds that awarding more than CNN paid pursuant to the fee agreement here would amount to a windfall for CNN and a penalty against Plaintiff. The cases cited by CNN, which mostly deal with fee awards in Section 1988 cases, are inapposite. Although courts allow fee awards in Section 1988 cases that exceed a fee agreement, there is one significant difference between the statutes at issue: Fees awarded pursuant to Section 1988 go directly to the attorneys, whereas under the Copyright Act, they are awarded to the prevailing party. See id. ([Section 505 of the Copyright Act] clearly provides for a fee award to be made to a prevailing party, not directly to counsel."). The policy concerns that weigh in favor of awarding fees to attorneys who take Section 1988 cases — i.e., providing an incentive to these attorneys by paying them at the prevailing rate rather than the rate that their clients can afford to pay — are absent here.

  Accordingly, the Court awards CNN $95,928.69 in attorneys' fees incurred prior to the fee agreement and $20,000 incurred pursuant to the fee agreement, for a total of $115,928.69. Page 14

  e. Costs Incurred in the Underlying Litigation

  CNN requests an award for $21,045 in costs for the underlying litigation. CNN has provided records showing how these costs were incurred, including electronic research and document duplication, as well as DWT's bills to CNN reflecting these costs. The Court has reviewed these costs, which Plaintiff does not contest, and finds that they are reasonable. Therefore, CNN is awarded costs for the underlying litigation in the amount of $21,045.

  f. Reimbursement for Fees and Costs for Fee Application

  DWT also requests $24,567 in fees and $804 in costs for legal services performed in the protracted fee proceedings, all of which occurred after CNN's fee agreement with DWT lapsed. The Court finds that this is reasonable and directs Plaintiff to reimburse CNN in these amounts. The attorney's fees were calculated by multiplying the hourly rates that the Court has found reasonable in the previous section by 82.7 billable hours, which the Court likewise finds reasonable.

  CNN's counsel incurred substantial fees and costs countering, as they had in the underlying proceedings, Plaintiff's meritless arguments, including that Defendants could not file a fee motion because the "cases had closed" Page 15 and that Defendants' attorneys "falsely dat[ed]" the moving papers in an "attempt to cover up their misdeeds." (See Ballin Dec. Ex. 78; see also id. at 45-50, Exs. 74, 76); Video-Cinemas, 2001 WL 1154625, at *2 (stating that Video-Cinema's claim "is an example of the frivolous nature of Plaintiff's arguments"). In addition, DWT wrote off $14,726.09 in attorneys' fees and $2,105.86 in costs incurred on CNN's opposition to Plaintiff's untimely Notice of Appeal alone, which Plaintiff agreed to dismiss after meeting with Second Circuit staff counsel. (Ballin Dec. Ex. 8).

  Moreover, as before, DWT wrote off many hours of work spent on the fee proceedings, including time spent drafting the Motion for Pre-Judgment Restraint of Video-Cinema, which became moot after its submission, as well as certain time spent after April 30, 2003 on drafting the extensive and lengthy Ballin Declaration that accompanied DWT's application for fees and costs.

  Accordingly, the Court awards CNN $162,344.69, which consists of attorneys' fees in the amount of $115,928.69 and costs in the amount of $21,045 for the underlying Page 16 litigation, and $24,567 in attorneys' fees and $804 in costs for the fee proceeding.*fn7

 2. ABC

  ABC requests a total of $127,093 in attorneys' fees and $7,001.97 in costs for all of the legal work performed throughout the course of this action. Unlike CNN, however, ABC used its in-house counsel for this matter rather than retaining outside counsel.

  It is well-settled that attorneys' fees and costs should be awarded for litigation performed by in-house counsel if such fees would be awarded for the same work performed by outside counsel. Blum v. Stenson, 465 U.S. 886 (1984); see also Broadcast Music v. R Bar, 919 F. Supp. 656 (S.D.N.Y. 1996). Courts usually determine an appropriate fee for in-house counsel's services based on what the appropriate fee would be for work performed by "independent counsel for similar services." Broadcast Music, 919 F. Supp. at 661. Therefore, when applying the lodestar calculation, the court may use a reasonable hourly rate that the in-house counsel would be awarded if he or she was acting in the capacity of an outside counsel. See Blum 465 U.S. at 900. Page 17

  a. Billing Rates

  The two attorneys at ABC who worked on this case were well-qualified and experienced in media law, and would be the equivalent of partners if they worked at a law firm. Because they were in-house, however, they performed the functions that would typically be performed by a combination of senior and junior associate as well. Accordingly, ABC suggests that the Court use a "blended" rate based on the current market rates that DWT bills out the two principal attorneys who worked on the case, and subtracting the same 12% discount, as a reasonable means of determining a lodestar rate for ABC. This rate comes out to $322 per hour.

  Although the Court agrees that ABC's calculation is a reasonable means of arriving at a billing rate, in this case it would amount to a windfall for ABC. ABC provided the Court with its "Estimation of the Actual Imputed Costs of In-House Counsel's Time," in which it calculates that the attorneys' time is actually worth $152.44 per hour. (ABC's Stat. Ex. 8). Plaintiff asserts, and the Court agrees, that this figure should be used in the lodestar calculation. Because the court must be careful not to award fees that could be construed as a "penalty" or a "windfall," the Court will use the $152.44 figure in the Page 18 lodestar calculation for the attorneys. Cf. Crescent Publ'g, 246 F.3d at 150-51.

  ABC asserts that the paralegals' time was worth $108 per hour. Plaintiff does not challenge this figure, and the Court finds that it is reasonable. Therefore, the Court will use $108 in the lodestar calculation of the paralegals' fees.

  b. Hours Billed

  ABC requests reimbursement for 236.3 hours of attorney time and 9.3 hours of paralegal time.

  Similar to its challenge to CNN, Plaintiff does not contest the reasonableness of the hours purportedly expended by ABC, but instead asserts that the records produced by ABC verifying the amount were not Contemporaneous." (Pl's ABC Mem., July 31, 2003, at 2). Specifically, Plaintiff argues that ABC's former attorney, Stephanie Abrutyn, "maintained sporadic time records," and "did not submit: an affidavit . . . as regards whether her alleged time records were recorded contemporaneously, with any references to them being unreliable since they are based on hearsay." (Id. at 2). Plaintiff's expert, Philip Seltzer, challenges Abrutyn's successor attorney, Nathan Page 19 Seigel, on the same basis.*fn8 (Report of Philip Seltzer ("Seltzer's ABC Rep.") at 2).

  Plaintiff's first contention is, in part, plainly false, as Abrutyn supplied a sworn affidavit attached to ABC's original Statement as an Exhibit. (See ABC's Statement of its Reasonable Attorneys' Fees and Costs ("ABC's Stat.") Ex. B2). Moreover, ABC produced some contemporaneous records kept by its in-house attorneys, as well as other contemporaneous records, including DWT's records reflecting time its attorneys spent with ABC's attorneys and Court records, that evidence time spent and tasks worked on by ABC's attorneys. (Id. Exs. 2-3). The Court has reviewed these records, and concludes that they provide sufficient evidence of the 263.3 hours ABC claims it's attorneys expended and the 9.3 hours expended by the paralegals.*fn9

  In addition to this, ABC asserts that it would be grossly undercompensated for the reasonable value of its work throughout the three-year litigation if the Court did Page 20 not add at least $50,000 in fees for time expended for which no records were kept. Specifically, ABC argues that it would not be reimbursed for the time spent on preparing depositions, responding to and propounding discovery requests, litigating several discovery disputes, and preparation of summary judgment motions, all of which "occupied most of [counsel's] time in this case over a period lasting almost a year." (ABC's Stat. at 16-18).

  The Court agrees that $50,000 is reasonable, and more likely than not a rather conservative estimate of the value of the time actually rendered.*fn10 However, because ABC did not maintain contemporaneous records of this time, this award is reduced by 25%. F.H. Rear & Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1265 (2d Cir. 1987)(holding that a reduction in fees is appropriate when contemporaneous records have not been kept); Cf. Broadcast Music, 919 F. Supp. at 661 (awarding in-house counsel 50% of the requested attorneys' fees because no contemporaneous records were kept). Thus, the Court awards $40,137.45 (263.3 x 152.44) plus $37,500, for a total of $77,637.45, for the attorneys' time and $1,004.40 (9.3 x 108) for the paralegal's time. Page 21

  c. Costs

  ABC requests an award for $7,001.97 in costs. Plaintiff does not question the reasonableness of the amount of costs, "but rather challenges ABC's claim on the basis that it did not provide proper documentation of the costs, and specifically, that it provided "no business vouchers or other documentation for travel expenses." (Seltzer at 5). That statement is plainly refuted by the 26 pages of travel receipts and expense reports attached the ABC's declaration. (ABC's Stat. at Ex. 6). The Court has reviewed this evidence and finds that it is more than adequate. In addition, the Court finds that $7,001.97 is reasonable.

  Accordingly, ABC is awarded $85,643.82 in attorneys' fees and costs.

 3. CBS

  CBS requests $74,826.20 in attorneys' fees and $3,436.78 in costs for all the legal work performed, which was done by its Law Department rather than outside counsel.

  a. Hourly Rate

  CBS requests the same $322 figure for its in-house attorneys that this Court has rejected for ABC, but does not provide any estimate of the actual cost to CBS of its in-house counsel's time. The Court therefore directs CBS to Page 22 provide an estimate of the actual imputed cost of its in-house attorney's time. After reviewing this estimate, the Court will decide the proper amount of fees to award CBS.

  b. Time Billed

  Like ABC, CBS's Law Department admits that it is not their regular practice to maintain time records. Plaintiff argues that because CBS does not present contemporaneous time records, the amount that CBS requests is arbitrary and "based on pure speculation." (Declaration of Naomi B. Waltman in Support of CBS's Application for Award of Reasonable Attorneys' Fees and Costs, July 31, 2003 ("CBS's Stat."), at 2; Pl's CBS Mem. at 2; Report of Philip Seltzer "Seltzer's CBS Rep." at 2-4).

  Plaintiff's characterization is not accurate. CBS's attorney kept contemporaneous records for the legal worked performed in conjunction with the fee proceedings. The Court has reviewed these records, and approves of the 40.1 hours claimed. In addition, CBS has produced evidence, most of which consists of DWT's records of conferences and communications that involved CBS's counsel, showing that they worked at least 30 hours for the underlying proceedings. The Court finds these records reliable and Page 23 adequate evidence that CBS's attorney worked these 30 hours.*fn11

  Therefore, the Court finds that CBS has produced sufficient records to support 70.1 hours.

  However, like ABC, CBS requests $50,000 above whatever figure the lodestar calculation results in, because it would be undercompensated for the reasonable value of its work, including for the time spent on drafting an answer, conducting factual investigations regarding the two CBS news reports that were at issue in the underlying litigation, drafting and responding to Plaintiff's discovery requests, preparing for depositions, litigating several discovery disputes, and the preparation of lengthy and substantial summary judgment motion papers and reply memoranda.

  After the Court reviews CBS's estimate of the actual imputed cost of in-house counsel, it will decide whether or to what extend CBS should be awarded fees beyond the 70.1 hours evidenced by its records.

  c. Costs

  CBS requests reimbursement for $3,436.78 in costs. Despite Plaintiff's argument to the contrary, Plaintiff has Page 24 provided adequate proof of these expenditures, including bills for deposition transcripts, document duplicating, and contemporaneous internal claim forms for travel expenses. The Court has reviewed all of the proof, and finds that the amount claimed is reasonable. The Court also notes that this amount is far less than the costs actually incurred by CBS for expenditures for telephone calls, couriers, mail, electronic legal research and other items necessary to conduct a litigation, which are all paid as part of CBS's overhead and which CBS has "no practical way" of accounting for. (CBS's Stat. at 12).

  Accordingly, the Court awards CBS $3,436.78 in costs.


  For the reasons above, CNN is awarded $140,495.69 in attorneys' fees and $21,849 in costs, ABC is awarded ABC is awarded $78,641.85 in attorneys' fees and $7,001.97 in costs, and CBS is awarded $3,436.78 in costs. CBS is directed to produce an estimate of the actual imputed cost of its in-house attorney's time by Tuesday, February 17, 2004. After reviewing this estimate, the Court will set the amount of CBS's award. Page 25


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