United States District Court, S.D. New York
MEMORANDUM DECISION AND ORDER
B. DANIELS UNITED STATES DISTRICT JUDGE.
Sid Bernstein Presents, LLC ("SBP"), brought this
action against Defendants Apple Corps Limited ("Apple
Corps") and Subafilms Limited ("Subafilms")
(collectively "Defendants"), alleging copyright
infringement and seeking a declaration of rights in the
"Master Tapes" and its derivative works, as well as
damages for the Defendants' alleged copyright
infringement based on Defendants' use of the raw
audiovisual footage belonging to Plaintiff. (Compl., ECF No.
1, at 17-19.) SBP is the owner by assignment of all the
intellectual property rights of the late music producer Sid
Bernstein. (Id. ¶¶8-9.) Defendant Apple
Corps was founded by members of The Beatles; Defendant
Subafilms is its subsidiary. (Id. ¶¶ 2-3.)
moved to dismiss the complaint for failure to state a claim
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. (Defs.' Mot. to Dismiss, ECF No. 19.) This
Court granted Defendants' motion to dismiss the
complaint. (Mem. Decision & Order ("Order"),
ECF No. 47, at 6-14.) Defendants also moved for sanctions
against Plaintiffs counsel under Rule 11 of the Federal Rules
of Civil Procedure. (Defs.' Sanctions Mot., ECF No. 25.)
This Court denied Defendants' motion for sanctions,
finding that although Plaintiff failed to state a plausible
claim for relief, "the filings [did] not support a
conclusion that the claims were clearly frivolous or were
alleged in bad faith." (Order at 15-16.) As the
prevailing party, Defendants moved for an award of
attorneys' fees and costs pursuant to 17 U.S.C. §
505, Rule 54 of the Federal Rules of Civil Procedure, and
Rule 54.1 of the Local Civil Rules. (Defs.' Mot. For
Att'ys' Fees and Costs, ECF No. 49.)
matter was referred to Magistrate Judge Kevin N. Fox. (ECF
No. 58.) Before this Court is Magistrate Judge Fox's
January 25, 2018 Report and Recommendation (Report, ECF No.
63), recommending that this Court grant the Defendants'
motion for costs in the amount of $1, 159.01, but award no
attorneys' fees due to Defendants' failure to
establish a basis for determining reasonable attorneys'
fees. (Id. at 19.) In his Report,
Magistrate Judge Fox advised the parties that failure to file
timely objections to the Report would constitute a waiver of
those objections on appeal. (Id. at 20); see
also 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).
Both Plaintiff and Defendants filed timely objections to the
Report. (See PL Obj. to Report ("Pl.
Obj."), ECF No. 65; Defs. Obj. to Report ("Defs.
Obj."), ECF No. 64.)
is no clear error on the face of the record as to those
portions of the report to which no objections were made. This
Court considered the issues raised in Plaintiffs and
Defendants' objections and reviewed de novo the
objected-to portions of the Report. This Court ADOPTS
Magistrate Judge Fox's recommendation that Defendants are
entitled to attorneys' fees and costs, and REJECTS the
recommendation that such costs cannot be reasonably
motion for attorneys' fees and costs is GRANTED.
Plaintiff shall pay Defendants' reasonable fees in the
amount of $83, 417.45 and costs in the amount of $1, 159.01.
may accept, reject or modify, in whole or in part, the
findings and recommendations set forth within a report and
recommendation. See 28 U.S.C. § 636(b)(1)(C).
When no objections to the Report are made, the court may
adopt the report if "there is no clear error on the face
of the record." Adee Motor Cars, LLC v. Amato,
388 F.Supp.2d 250, 253 (S.D.N.Y. 2005) (citation omitted).
there are objections to the report, the court must make a
de novo determination as to the objected-to portions
of the Report. 28 U.S.C. § 636(b)(1)(C); see also
Rivera v. Barnhart, 423 F.Supp.2d 271, 273 (S.D.N.Y.
2006). It is sufficient that this Court "arrive at its
own, independent conclusions" regarding those portions
to which objections were made. Nelson v. Smith, 618
F.Supp. 1186, 1189-90 (S.D.N.Y. 1985) (internal citation
omitted); see United States v. Raddatz, 447 U.S.
667, 675-76 (1980). However, where a litigant's
objections are conclusory, repetitious, or perfunctory, the
standard of review is clear error. McDonaugh v.
Astrue, 672 F.Supp.2d 542, 547-48 (S.D.N.Y. 2009).
have discretion in deciding whether to award costs and
attorneys' fees. Fogerty v. Fantasy, Inc., 510
U.S. 517, 533 (1994). In exercising this discretion, courts
deciding whether to award costs and attorneys' fees under
§ 505 should consider "frivolousness, motivation,
objective unreasonableness, and the need in particular
circumstances to advance considerations of compensation and
deterrence." Porto v. Guirgis, 659 F.Supp.2d
597, 617 (S.D.N.Y. 2009) (quoting Fogerty, 510 U.S.
at 534 n.19) (internal quotation marks and citations
omitted). In calculating the amount of attorneys' fees to
award, courts may consider other factors, including the
financial resources of the losing party. See Peyser v.
Searle Blatt & Co., No. 99 Civ. 10785 (WK), 2001
U.S. Dist. LEXIS 20844, at *20 (S.D.N.Y. Dec. 13, 2001)
("The aims of the Copyright Act are compensation and
deterrence where appropriate, but not ruination.")
(internal quotation marks and citations omitted).
objects primarily to Magistrate Judge Fox's conclusion
that the Fogerty factors weigh in favor of granting
Defendant attorneys' fees. Plaintiffs specifically object
to the Report's findings regarding the following
Fogerty factors: (1) objective unreasonableness; (2)
compensation and deterrence; and (3) the relative financial
situation of the parties. (See Pl. Obj. at 2.)
objects that its litigation position was not objectively
unreasonable because, in denying Defendants' motion for
sanctions, this Court necessarily found that Plaintiffs
claims were not objectively unreasonable. (Id.)
Plaintiff maintains, therefore, that under the doctrine of
law of the case, this Court's previous finding that
Plaintiffs positions "were not frivolous under an
objectively unreasonable standard" should be controlling
in this subsequent stage of the litigation. (Id. at
3-4.) Plaintiff maintains further that the "objectively
unreasonable" standard under Rule 11 is not
substantively different from the "objectively
unreasonable" standard under Section 505. (Id.
at 4; see also Id. at 2 ("[T]he cited case
of Mar go v. Weiss . . . makes clear that the Rule
11 standard is substantively the same as the
objective unreasonableness factor . . . under
Section 505 of the Copyright Act.").) Furthermore,
Plaintiff argues that based on the Circuit split concerning
whether the mere registration of a copyright can trigger the
statute of limitations, Plaintiffs argument that its claims
were not time-barred was "a nonfrivolous argument for
extending, modifying, or reversing existing law or for
establishing new law." (Id. at 5-7.) Plaintiff
further objects that Fogerty's compensation and
deterrence factors do not support an award of attorneys'
fees for the same reasons. (See Id. at 8-9.)
also objects that "the great financial disparity between
the financial resources of Plaintiff and the Defendants"
weighs against awarding attorneys' fees. (Id. at
12.) Plaintiff notes that Defendants did not object to
Plaintiffs assertion that Defendants "are highly
successful and well-heeled corporations with substantial
assets and income." (Id. at 9.) Plaintiff also
asks this Court to take judicial notice of a third-party
report demonstrating the size of Defendants'