Attorney Fees Update

The U.S. District Court for the Southern District of New York decided that attorney fees and costs should be apportioned 50 percent between a plaintiff record company's copyright infringement and common law claims against a defendant record company. TVT Records v. The Island Def Jam Music Group, 02-6644. But the court refused to separately award costs and fees under 17 U.S.C. Sec. 505 for trial litigation of the copyright claims, but gave the plaintiffs a Sec. 505 award for work done in post-trial proceedings, including on the attorney fees motion, in this suit over rights to artist product. In its verdict, the jury had awarded the majority of damages for the common law claims. The district court reduced the jury's punitive damages award for the plaintiff from $108,300 million to $29.125 million. The court acknowledged in the fee award decision that the punitive damages award “gave rise to a strong and reasonable inference that the jurors must have fully taken account, in their calculus of the award sufficient to achieve the level of punishment and deterrence of Defendants appropriate in this case, all permissible grounds and elements supported by the evidence they heard, including TVT's litigation expenses. … Accordingly, the Court concludes that granting TVT's separate application for attorneys' fees and costs would represent a duplication of recovery to the extent the request relates to factors that were already recognized and presumably reflected, even if not explicitly articulated as such, in the jury's punitive damages awards, even as remitted.” On the post-trial fees and costs, the court adjusted the 50% apportionment, then awarded the plaintiffs less than half of the $494,474 requested, citing such concerns as unreimbursable travel expenses and excessive number of lawyers used.

The U.S. District Court for the Eastern District of New York awarded attorney fees and costs to the producers of a documentary that successfully defended against copyright infringement and right of publicity claims. Hofheinz v. AMC Productions Inc., 00-5827. Susan Nicholson Hofheinz, the widow of James Nicholson ' a principal of American International Pictures (AIP), which was influential in establishing the monster and teenage film genres ' had licensed to the defendants the use of film clips for the cable TV showing of a documentary about AIP. Displeased with the portrayal of her husband, Hofheinz later filed suit to block the defendants from showing the documentary in theaters for enough days to qualify for Academy Award consideration. The district court denied Hofheinz's request for a preliminary injunction and granted summary judgment for the defendants on fair use grounds. On the defendants' attorney fees request, the district court first noted that their motion statement under Rule 54(d)(2) of the Federal Rules of Civil Procedure was satisfactory in citing “accumulated defense costs” of $600,000, even though it didn't use the rule's “fair estimate” wording. The court then found that the language of Calif. Civ. Code Sec. 3344.1(a)(1) that the “prevailing party or parties in any action under this section shall also be entitled to attorneys' fees and costs” made an award of attorney fees for the defendants mandatory regarding Hofheinz's right of publicity claim. The court then questioned Hofheinz's motivation in pursuing the copyright claims noting that the case appeared to be really about her dissatisfaction with the content of the documentary. The court also found that Hofheinz's positions during the litigation had been objectively unreasonable.