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Harrell v. Plas

November 10, 2009


The opinion of the court was delivered by: Gerard E. Lynch, Circuit Judge*fn1


Plaintiff commenced this action on September 25, 2008, alleging that defendants Robert Van der Plas and Cycle Publishing / Van der Plas Publications violated her rights under the Copyright Act by republishing and selling copies of one of her books without her authorization. On June 19, 2009, upon plaintiff's acceptance of an offer of judgment pursuant to Rule 68, Fed. R. Civ. P., this Court entered judgment in favor of plaintiff in the amount of $7,500, directed the defendants to turn over to plaintiff all remaining copies -- save a few -- of the book entitled A Woman's Guide to Bikes and Biking in their possession, custody or control, and permitted plaintiff, over defendants' vigorous objections, to seek an award of costs, including reasonable attorneys' fees. On July 3, 2009, plaintiff moved for such an award. The application seeks $76,840 in attorneys' fees, and costs in the amount of $624.97. Defendants challenge almost every aspect of plaintiff's application, arguing that the Copyright Act's fee-granting provision does not apply to this action, and that even if the fee provision does apply, a discretionary award of fees would be inappropriate, and that the fees sought are unwarranted or excessive on a number of grounds.

The Court assumes the parties' familiarity with the underlying facts and the Court's prior opinions in the case. For the following reasons, plaintiff's motion will be granted to the extent set forth below.


I. Attorneys' Fees

A. Legal Standard

In a copyright action, a court may award costs and attorneys' fees to a prevailing party. See 17 U.S.C. § 505.*fn2 Such fees are "not to be awarded automatically to a prevailing party . . . but 'only as a matter of the court's discretion.'" Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1001 (2d Cir. 1995), quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994). In determining whether such an award is appropriate the court should consider "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," so long as these factors further the purposes of the Copyright Act. Fogerty, 510 U.S. at 534 n. 19 (internal citations and quotations omitted); see also Knitwaves, 71 F.3d at 1011-12.

As to the amount of attorneys' fees to award, courts determine the appropriate remuneration by calculating a "presumptively reasonable" fee -- "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The reasonable hourly rate reflects what a paying client would be willing to pay, and the hours "reasonably expended" are those actually expended by counsel minus "excessive, redundant, or otherwise unnecessary" hours. Id. at 434; see Arbor Hill Citizens Neighborhood Ass'n v. County of Albany ("Arbor Hill II"), 522 F.3d 182, 183 (2d Cir. 2008) (substituting the terminology "presumptively reasonable fee" for the older "lodestar" terminology, although the methodology of calculating the fee remains substantially the same).

Following the determination of the presumptively reasonable fee, the court must then consider whether an adjustment of the fee is warranted based on factors such as "financial disparities between the parties." Penguin Books U.S.A., Inc. v. New Christian Church of Full Endeavor, Ltd., No. 96 Civ. 4126, 2004 WL 728878, at *5 (S.D.N.Y. Apr. 6, 2004), but the Court need not "become enmeshed in a meticulous analysis of every detailed facet of the professional representation" in crafting a fee award, Seigal v. Merrick, 619 F.2d 160, 164 n. 8 (2d Cir. 1980). As the Supreme Court has indicated, "a request for attorney's fees should not result in a second major litigation." Hensley, 461 U.S. at 437. The district court is afforded broad discretion in determining a reasonable fee award based on the circumstances in the case. See id.

B. Applicability of 17 U.S.C. § 505

Defendants contend that plaintiff is not entitled to recover fees under 17 U.S.C. § 505 because this action did not involve a breach of plaintiff's copyright, but was, rather, "essentially a contract dispute" involving the scope of the 1999 publishing agreement that purportedly gave defendants the right to reproduce and distribute the original edition of plaintiff's book. Defendants' argument is unpersuasive.

Plaintiff brought this action under the Copyright Act. Her primary allegation was that defendants "willful[ly] and egregious[ly] violat[ed her]valuable intellectual property rights." (Compl. ¶ 1.) Specifically, she alleged -- not that defendants reproduced and distributed copies of the original edition of her book, which was the subject of the 1999 agreement -- but that defendants, in 2008, two years after "all publishing rights" had reverted to plaintiff, "created and published a revised edition of the [book] containing, among other things, new and additional photographs, captions and body text," all of which were "substandard, with poor quality photographs, substandard paper stock, and an unprofessional layout." (Compl. ¶¶ 14-15.)

Plaintiff's claim sounds, on its face, in copyright -- namely, that defendants "infringed plaintiff's copyright by publishing . . . and offering for sale a revised edition of [her book] in interstate commerce without [her] permission, license or consent." (Compl. ¶ 22 (emphasis added).) Defendants' argument to the contrary is strained. While not disputing the existence of the revised edition along the lines alleged by plaintiff, defendants argue that plaintiff authorized the revised edition when, by way of the 2006 agreement (Atlas Reply Aff. Ex. A), defendants were permitted to continue selling copies of the original edition notwithstanding that "all publishing rights" for the book otherwise reverted to plaintiff. This argument is puzzling, and certainly no answer to plaintiff's fundamental grievance regarding the publication and distribution of an entirely new and unauthorized edition. Nor does defendants' version of events plausibly transform this otherwise classic action for copyright infringement into one for breach of contract. It is black-letter law that a claim for copyright infringement lies when a party's use of copyrighted material exceeds the scope of its license. See Rogers v. Koons, 960 F.2d 301, 306 (2d Cir. 1992).

Defendants offer no precedent in support of their argument, and courts have consistently rejected attempts by similarly-situated defendants to restyle claims for copyright infringement -- which subject defendants to hefty penalties*fn3 and awards of fees and costs -- as breach of contract claims. See e.g., Eastern Broadcasting Am. Corp. v. Universal Video, Inc., No. 04 Civ. 5654, 2006 WL 767871, at *2 (E.D.N.Y. Mar. 24, 2006) (finding that where a party uses copyrighted material in a way that exceeds the duration or scope of a previously-granted license, the resulting claim is for copyright infringement, not breach of contract); Marshall v. New Kids on the Block Partnership, 780 F. Supp. 1005, 1008 (S.D.N.Y. 1991) (the existence of a prior license is no bar to a copyright claim because a copyright licensee can make itself a "stranger" to the licensor by exceeding the duration or scope of the license).*fn4 Indeed, defendants' position appears to boil down to the unsupportable assertion that the mere existence of a previously-granted license offers them immunity against federal copyright law because by virtue of a past relationship they could not possibly be "strangers" to the plaintiff. But, if "all publishing rights" reverted to the plaintiff in 2006, ...

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