Attorney Fees Update

A Manhattan federal district court adopted a magistrate's recommendation that a copyright plaintiff awarded $27,000 for the unauthorized use of a photograph on a CD cover nevertheless wasn't entitled to attorney fees. Barrera v. Brooklyn Music Ltd., 00 Civ. 9331 (RLC) (KNF). The defendant's infringement had begun before the plaintiff's filed a copyright registration for their photo. The magistrate had also noted that “the record does not include any contemporaneous time records, invoice(s) of the specific services provided or charges levied by the plaintiffs' counsel, or any other basis upon which the Court might evaluate the amount or reasonableness of the plaintiffs' attorney's fee.” The district court also denied the plaintiffs' request for expert witness fees by noting, “Given that the authority provided by Sec. 505 of the Copyright Act mirrors that of 28 U.S.C. Sec. 1920 recovery [of expert witness fees] is also barred under the Copyright Act.”

A Manhattan federal district court ruled that music publishers who won a default judgment in a copyright infringement action against a party that continued to use songs after compulsory licenses were revoked, was entitled to $59,684 in attorney fees. Peer International Corp. v. Max Music & Entertainment Inc., 03 Civ. 0996 (KMW) (DF). The plaintiffs' attorneys had billed at $354 per hour for law partners, $250 per hour for associates and $130 per hour for paralegals. The district court noted, “Plaintiffs have adequately supported their claims for attorneys' fees by submitting an attorney declaration, contemporaneous time records, a statement regarding each attorney's individual billing rate, relevant resumes, and a chart showing average rates charged by intellectual property attorneys in the New York City area. … While some of the attorney hours are high, they do not appear excessive, especially given Plaintiffs' explanation that counsel required many hours to gather and review information and documentation relating to chains of copyright title and to obtain the defaults in this action.”

The U.S. District Court for the Central District of California granted an artist's motion for costs and attorney fees in a suit filed against him alleging violation of copyright and trademark rights in Mattel's Barbie doll. Mattel Inc. v. Walking Mountain Products, 99-8543 RSWL (RZx). The court noted that Mattel was objectively unreasonable in making its copyright and trademark claims because the parodic character of the artist's work was clear. The court added that: “a trademark is not diluted through tarnishment by editorial or artistic parody that satirizes plaintiff's product or its image.”

The U.S. District Court for the Northern District of California awarded Yahoo! $16,964, rather than the requested $31,122, in attorney fees, following a default judgment in Yahoo's favor in a trademark infringement action. Yahoo! Inc. v. Net Games Inc., 329 F. Supp. 2d 1179. Under 15 U.S.C. Sec. 1117(a), a prevailing trademark infringement plaintiff can be awarded attorney fees in “exceptional cases.” The district court noted that “a reasonable attorney fee is the fee that would be charged by reasonably competent counsel, not counsel of unusual skill and experience. Reasonably competent counsel bill a reasonable number of hours at a reasonable hourly rate. A reasonable hourly rate is based on rates charged in the local legal community as a whole, not particular segments of the bar. … The experience of plaintiff's counsel and the high fees charged by the elite segments of the bar, to which plaintiff's papers attest, simply do not bear on the amount of a 'reasonable fee.'”

Copyright