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
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
Plaintiff will pay to Defendants pursuant to the Fee Decision. See
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
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
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,
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).
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
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
that 80% of New York law firms paralegals rates ranged from $105 to
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.
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,
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 ...