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Hudson v. Universal Studios

March 4, 2009


The opinion of the court was delivered by: Gerard E. Lynch, District Judge


The long history of this litigation is set forth in Hudson v. Universal Studios, Inc., No. 04 Civ. 6997, 2008 WL 4701488 (S.D.N.Y. Oct. 23, 2008) ("Hudson V"), and need not be repeated at length here. Briefly, Hudson has been suing defendants and others since 2002, in the Eastern District of New York and in this Court, contending that defendants' motion picture Life was plagiarized from his plays, Bronx House and No Harm, No Foul. In Hudson v. Universal Pictures Corp., No. 03-CV-1008, 2004 WL 1205762 (E.D.N.Y. Apr. 29, 2004) ("Hudson I"), aff'd, 128 F. App'x 178, 179 (2d Cir.2005) ("Hudson II"), the Eastern District dismissed his claims, finding that "no reasonable jury could find a substantial similarity between the protected elements of No Harm, No Foul and Life," and that the claim of similarity between Bronx House and Life was similarly "meritless." Hudson I at *4.

Undaunted, Hudson then filed suit in this Court. Initially, this Court dismissed his claims on grounds of res judicata. Hudson v. Universal Studios, Inc., No. 04 Civ. 6997, 2006 WL 1148695, at *1 (S.D.N.Y. Apr. 28, 2006) ("Hudson III"). The Court of Appeals affirmed the dismissal of Hudson's claims related to No Harm, No Foul, but vacated and remanded his claims related to Bronx House for further proceedings, finding some confusion in the record of Hudson II as to whether the Bronx House claims were properly before the court in that case. Hudson v. Universal Studios, Inc., 235 F. App'x 788, 790 (2d Cir. 2007) ("Hudson IV"). Those proceedings resulted in the finding on the merits in Hudson V that, just as Judge Block had held in Hudson II, Hudson's Bronx House claims, like his claims based on No Harm, No Foul, were without merit. 2008 WL 4701488, at *7.

Defendants now move for an award of attorneys' fees under 17 U.S.C. § 505.*fn1 The motion will be granted.


Defendants seek an award of attorneys' fees and costs pursuant to § 505 of the Copyright Act. Under § 505, 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. . . . [T]he court may also award a reasonable attorney's fee to the prevailing party as part of the costs." 17 U.S.C. § 505. An award of attorneys' fees is at the discretion of the district court, and prevailing defendants and plaintiffs are to be treated alike. Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994).

While there is no precise formula for determining whether an award of fees is appropriate, and bad faith is not a prerequisite to an award of fees under the Copyright Act, Screenlife Establishment v. Tower Video, Inc., 868 F. Supp. 47, 51-52 (S.D.N.Y. 1994), courts exercising their discretion consider the equitable factors of "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." Crescent Publ'g Group, Inc. v. Playboy Enters., 246 F.3d 142, 147 (2d Cir. 2001), quoting Fogerty, 510 U.S. at 534 n.19. The Second Circuit has recognized that "objective reasonableness is a factor that should be given substantial weight in determining whether an award of attorneys' fees is warranted" because "the imposition of a fee award against a copyright holder with an objectively reasonable litigation position will generally not promote the purposes of the Copyright Act." Matthew Bender & Co. v. West Publ'g Co., 240 F.3d 116, 122 (2d Cir. 2001); see also Baker v. Urban Outfitters, Inc., 431 F. Supp. 2d 351, 357 (S.D.N.Y. 2006). "This is because such attorney fee awards may chill litigation of close cases, preventing the clear demarcation of the boundaries of copyright law." Ariel (UK) Ltd. v. Reuters Group PLC, No. 05 Civ. 9646, 2007 WL 194683, at *1 (S.D.N.Y. Jan. 24, 2007), quoting Hofheinz v. AMC Prods., No. 00 Civ. 5827, 2003 U.S. Dist. LEXIS 16940, at *17 (E.D.N.Y. Sept. 1, 2003), citing in turn Fogerty, 510 U.S. at 527.

As noted above, among the factors to be considered in exercising the Court's discretion in this area, the objective unreasonableness of the plaintiff's claims should be accorded "substantial weight." Matthew Bender, 240 F.3d at 121-22. "Indeed, a number of courts in this circuit have awarded attorneys' fees to prevailing defendants solely upon a showing that the plaintiff's position was objectively unreasonable, without regard to any other equitable factor." Baker, 431 F. Supp. 2d at 357 (internal quotation marks omitted), citing Adsani v. Miller, No. 94 Civ. 9131, 1996 WL 194326, at *12-13 (S.D.N.Y. Sept. 19, 1996).

The mere fact that a defendant has prevailed, however, "does not necessarily equate with an objectively unreasonable claim." Ann Howard Designs, L.P. v. Southern Frills, Inc., 7 F. Supp. 2d 388, 390 (S.D.N.Y. 1998). "To hold otherwise would establish a per se entitlement of attorney's fees whenever issues pertaining to judgment are resolved against a copyright plaintiff. . . . This is not a correct construction of the law." Nicholls v. Tufenkian Import/Export Ventures, Inc., No. 04 Civ. 2110, 2005 WL 1949487, at *3 (S.D.N.Y. Aug. 11, 2005) (internal punctuation omitted). Similarly, the fact that a defendant has prevailed on a motion to dismiss or on summary judgment does not require the court to award fees. See, e.g., Brown v. Perdue, No. 04 Civ. 7417, 2006 WL 2679936 (S.D.N.Y. Sept. 15, 2006). However, if a copyright claim is "clearly without merit or otherwise patently devoid of legal or factual basis," that claim "ought to be deemed objectively unreasonable," Penguin Books U.S.A., Inc. v. New Christian Church of Full Endeavor, Ltd., No. 96 Civ. 4126, 2004 WL 728878, at *3 (S.D.N.Y. Apr. 6, 2004), and an award of fees and costs is then proper.

In this case, it is clear that plaintiff's claims with respect to Bronx House were objectively unreasonable. As the Court ruled in granting summary judgment,

[a]fter reading the script for Bronx House, viewing the motion picture Life, and thoroughly analyzing plaintiff's supporting materials, it is clear that no substantial similarity exists between the two works. Any similarity between the two works exists only at the most general level, in that Life and Bronx House are both set in prisons and deal with the issue of wrongful incarceration. But these are similarities only in the ideas the works seek to represent, and thus are not protectable elements of artistic expression. . . .

There is no substantial similarity in the total concept and feel, theme, setting, or plot of Bronx House and Life.

Hudson V, 2008 WL 4701488, at *4.

A review of the Court's opinion in Hudson V demonstrates that no reasonable person could have believed that the minor similarities, intrinsic to any drama of unjustified incarceration, warranted a conclusion that the two works were similar. Hudson's play, set in the 1990s, involves a politically-prominent white-collar offender who has to deal, over a week's imprisonment in the Bronx House of Detention, with violent gangs and other incidents of incarceration in a contemporary jail. Defendants' film, by contrast, is a largely comic drama set in a Mississippi prison, that deals with the life made by characters who are imprisoned for a period of sixty years. "In their major expressive elements, there is no similarity between the two works." Id. Here, as in Chivalry Film Productions v. NBC Universal, Inc., 05 Civ. 5627, 2007 WL 4190793, at *3 ...

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