The opinion of the court was delivered by: John G. Koeltl, District Judge:
The plaintiff, Jovani Fashion, Ltd. (the "plaintiff" or "Jovani"), a manufacturer of prom dresses, sued several competitors, including Fiesta Fashions ("Fiesta"), principally under the Copyright Act, 17 U.S.C. § 101 et seq., for allegedly infringing a copyrighted dress design or copyrighted elements of that design. In July, this Court granted Fiesta's motion to dismiss under Rule 12 of the Federal Rules of Civil Procedure. See Jovani Fashion, Ltd. v. Cinderella Divine, Inc., No. 10 Civ. 7085, 2011 WL 2671584, at *8 (S.D.N.Y. July 7, 2011). Fiesta now moves for costs and attorney's fees.
The following facts are undisputed, unless otherwise indicated.
Jovani is a designer and manufacturer of women's dresses, particularly evening dresses, pageant gowns, prom dresses, and cocktail dresses. Jovani, 2011 WL 2671584, at *2. Between May and August 2010, Jovani filed copyright registration applications on and received copyright registrations for ten catalogs that Jovani claims show artwork incorporated in dresses. Id. On September 15, 2010, Jovani filed a lawsuit in this Court against eleven competing dressmakers or retailers, among others, alleging that dresses which these defendants made or sold incorporated artwork that is substantially similar to and was copied from Jovani's designs. Id.
In its initial complaint, Jovani alleged three causes of action against the defendants: (1) copyright infringement claims under the Copyright Act, 17 U.S.C. § 101 et seq.; (2) trademark claims and claims for other violations of the Lanham Act, 15 U.S.C § 1051 et seq.; and (3) unfair competition claims under New York state common law. (Compl. ¶ 119-148, Jovani Fashion, Ltd. v. Cinderella Divine, Inc., No. 10 Civ. 7085, Docket No. 1) With regard to Fiesta specifically, the Complaint alleged only that, "[u]pon information and belief, Fiesta has manufactured, imported, advertised, publicly displayed, offered for sale and sold Infringing Dresses in the United States." (Compl. ¶ 99 & Ex. S.)
Fiesta moved to dismiss Jovani's claims in December 2010. On January 13, the Court heard oral argument. At that argument, the Court granted the plaintiff permission to amend its complaint, and denied the first motion to dimiss as moot. The Court noted that if a future motion to dismiss was successful it would be granted with prejudice. (Order dated Jan. 14, 2011, Jovani Fashion, Ltd. v. Cinderella Divine, Inc., No. 10 Civ. 7085, Docket No. 61.)
In its First Amended Complaint, Jovani asserted only claims under the Copyright Act, and no longer asserted claims under the Lanham Act or New York state common law. Jovani asserted 26 counts of copyright infringement, alleging that the various defendants had infringed 25 of its designs. (Am. Compl. ¶ 99-370, Jovani Fashion, Ltd. v. Cinderella Divine, Inc., No. 10 Civ. 7085, Docket No. 64.) With regard to Fiesta, the amended complaint alleged that Fiesta "ha[d] manufactured, imported, advertised, publicly displayed, offered for sale, and sold Infringing Dresses in the United States, including Fiesta Fashions' style no. FI50021." (Am. Compl. ¶ 82; see also Am. Compl. ¶¶ 80-81 & Ex. M.) "Count 21" of Jovani's amended complaint applied specifically to Fiesta's alleged infringement on "Jovani style 154416." (Am. Compl. ¶¶ 318-326.) Jovani had registered a copyright for that dress style with the United States Copyright Office in September 2009. (Am. Compl. ¶¶ 319- 321 & Ex. C at 10; Sofer Decl. Ex. B.) In the amended complaint, Jovani alleged that the style encompassed original artwork [that] includes the ornamental design and arrangement on the face of the fabric of the depicted dress, including but not limited to the selection and arrangement of sequins and beads and their respective patterns on the bust portion, as well as the wire-edged tulles added to the lower portion of the depicted dress. Such original artwork is physically and conceptually separable from the functional aspects of the dress that is depicted, primarily because such artwork is purely aesthetic and serves no functional purpose in the depicted dress. (Am. Compl. ¶ 320) Count 21 was the only claim of copyright infringement alleged against Fiesta in the amended complaint.
Fiesta and another defendant then moved to dismiss the amended complaint pursuant to Rule 12 of the Federal Rules of Civil Procedure. This Court denied the other defendant's motion to dismiss because that defendant "ha[d] not made any argument that the particular dresses or design elements that it is alleged to have infringed are unprotectable." Jovani, 2011 WL 2671584, at *5 (emphasis in original). The specific allegations of unprotectability in Fiesta's motion, by contrast, "allow[ed] the Court to assess the separability of the allegedly protected elements in the dress at issue." Id. On July 7, 2011, this Court granted the motion to dismiss the claim against Fiesta; the Court found that the elements of Jovani style # 154416, the only dress design that Fiesta had allegedly infringed, were neither physically nor conceptually separable from dress as whole. Id. at *5-*8.
Fiesta then brought the present motion for costs and attorney's fees pursuant to § 505 of the Copyright Act, 17 U.S.C. § 505, and § 32(a) of the Lanham Act, 15 U.S.C. § 1117(a). In defending this case through the successful motion to dismiss, Fiesta incurred total attorney's fees of $35,498.75, and costs of $2,302.10. (Choi Decl. ¶¶ 4-6 & Ex. A-I.) Fiesta also incurred attorney's fees of $10,582.50, and additional costs of $2,101.74, in litigating the present motion for costs and attorney's fees. (Choi Supp. Decl. ¶¶ 4-5 & Ex. A.) Fiesta has asserted, and Jovani has not challenged, that those fees and costs are based on a reasonable hourly rate for the lawyers who worked on this case, that the number of hours worked was itself reasonable, and that the fees and costs were justified by contemporaneously recorded time records. (Ross Decl. ¶ 10; Hogan Decl. ¶¶ 6-7.)
Section 505 of the Copyright Act provides:
In 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 ...