<b>Attorney-Fee Ruling</b> Copyright Litigation

The U.S. District Court for the Southern District of New York denied attorney fees to Fox Entertainment despite a stipulated dismissal with prejudice of a copyright suit against the company. Ninox Television, Ltd. v. Fox Entertainment Group, Inc., 04 CIV. 7891 (DLC). Ninox had filed suit in Manhattan federal court alleging that Fox's reality TV series 'The Complex: Malibu' was substantially similar to Ninox's New Zealand-based series, 'Dream Home.' Soon after, Nine Films & Television. Pty Ltd., which had licensed the right to Fox to produce 'The Complex: Malibu,' filed a complaint against Ninox in Australia for a declaration that Nine's series 'The Block' didn't infringe on 'Dream Home.' After Nine won its case, Fox moved for an award of attorney fees under Sec. 505 of the Copyright Act as a prevailing party in the New York case brought by Ninox.

The Manhattan federal district court decided: 'It appears that Ninox was principally motivated to bring this suit not by issues arising directly under the Copyright Act, but by a mistaken but genuine belief that Fox had tortiously interfered with Ninox's contract rights. Once in the litigation, Ninox tried to make the litigation more burdensome and expensive for Fox, but those efforts were largely unsuccessful. Over Ninox's objections, Fox won a stay of discovery and the right to bring an early summary judgment motion. Much of the cost and burden of litigation rested on Fox's licensor, who undertook the Australian Action. '

'[A]ny litigation is burdensome and expensive, and this [New York] litigation is no exception. That said, the cost of litigation was controlled through Fox's successful litigation strategy. That strategy limited expenditures and ultimately produced Ninox's agreement to dismiss the action with prejudice. Although Ninox's copyright claim is frivolous under prevailing law, because this litigation would have applied copyright principles to a relatively new field of intellectual property, format licensing, as a matter of discretion, the Court will refrain from awarding attorney's fees.'

The U.S. District Court for the Southern District of New York denied attorney fees to Fox Entertainment despite a stipulated dismissal with prejudice of a copyright suit against the company. Ninox Television, Ltd. v. Fox Entertainment Group, Inc., 04 CIV. 7891 (DLC). Ninox had filed suit in Manhattan federal court alleging that Fox's reality TV series 'The Complex: Malibu' was substantially similar to Ninox's New Zealand-based series, 'Dream Home.' Soon after, Nine Films & Television. Pty Ltd., which had licensed the right to Fox to produce 'The Complex: Malibu,' filed a complaint against Ninox in Australia for a declaration that Nine's series 'The Block' didn't infringe on 'Dream Home.' After Nine won its case, Fox moved for an award of attorney fees under Sec. 505 of the Copyright Act as a prevailing party in the New York case brought by Ninox.

The Manhattan federal district court decided: 'It appears that Ninox was principally motivated to bring this suit not by issues arising directly under the Copyright Act, but by a mistaken but genuine belief that Fox had tortiously interfered with Ninox's contract rights. Once in the litigation, Ninox tried to make the litigation more burdensome and expensive for Fox, but those efforts were largely unsuccessful. Over Ninox's objections, Fox won a stay of discovery and the right to bring an early summary judgment motion. Much of the cost and burden of litigation rested on Fox's licensor, who undertook the Australian Action. '

'[A]ny litigation is burdensome and expensive, and this [New York] litigation is no exception. That said, the cost of litigation was controlled through Fox's successful litigation strategy. That strategy limited expenditures and ultimately produced Ninox's agreement to dismiss the action with prejudice. Although Ninox's copyright claim is frivolous under prevailing law, because this litigation would have applied copyright principles to a relatively new field of intellectual property, format licensing, as a matter of discretion, the Court will refrain from awarding attorney's fees.'