Attorney Fees

The U.S. District Court for the Southern District of New York granted a motion for attorney fees by Universal Studios and its production company co-defendants in long-running copyright-infringement litigation over the movie Life. But the district court said it was “highly unlikely that [the pro se plaintiff] has anything like the resources available to defendants, for whom defending copyright lawsuits is a (perhaps unfortunate) regular cost of doing business. This factor may well limit the amount of fees that should be awarded in this case.” Hudson v. Universal Studios Inc., 04 Civ. 6997(GEL).

Gregory Hudson claimed that Life infringed on his plays Bronx House and No Harm, No Foul. The U.S. District Courts for the Eastern District of New York and the Southern District of New York both dismissed his claims. The studio defendants then sought modest attorney fees under Sec. 505 of the Copyright Act for prevailing on a motion for summary judgment filed to stop Hudson's suit in the Southern District regarding his play Bronx House.

The Southern District judge found Hudson's Bronx House claim to be objectively unreasonable. The judge observed that “no reasonable person could have believed that the minor similarities, intrinsic to any drama of unjustified incarceration, warranted a conclusion that the two works were similar. Hudson's play, set in the 1990s, involves a politically prominent white-collar offender who has to deal, over a week's imprisonment in the Bronx House of Detention, with violent gangs and other incidents of incarceration in a contemporary jail. Defendants' film, by contrast, is a largely comic drama set in a Mississippi prison, that deals with the life made by characters who [sic] are imprisoned for a period of sixty years.”

The district court explained in its attorney fees ruling: “Courts in this district have noted that a plaintiff's lack of resources is not relevant to whether an award of fees is appropriate, but that 'financial disparities may be a factor considered in determining the magnitude of an award once it has been resolved that such an award is appropriate.' ' As defendants correctly point out, Hudson has not properly documented his financial status, and thus, even if his financial condition were relevant to whether to grant a fee award, the record at this point is insufficient to support a conclusion that Hudson cannot afford to pay any part of defendants' fees, particularly where the reasonable expenses incurred by defendants has not yet been determined.”

Contrast the Hudson grant of attorney fees with a denial by the U.S. Court of Appeals for the Sixth Circuit of a defense motion for Sec. 505 attorney fees in Jones v. Blige, discussed starting on page 1 of this issue of Entertainment Law & Finance. Though the Sixth Circuit agreed that Mary J. Blige and her co-defendants were entitled to summary judgment in a copyright infringement suit over Blige's song “Family Affair,” the appeals court explained: “Plaintiffs produced evidence of the following: a validly copyrighted song, permission from an executive at Universal to submit a demo CD that included that song, assurance from a secretary that the executive would listen to the demo CD, and the return of the demo CD in a manner showing that someone had opened the package in which it was submitted. Defendants' evidence countering Plaintiffs' theory of access and showing independent creation was brought forth during discovery and was not available to Plaintiffs when they filed their suit. Furthermore, Plaintiffs offered expert testimony that the songs were similar, and although the testimony was excluded, its existence weighed against deeming the suit frivolous. Accordingly, Plaintiffs' case was not frivolous or 'objectively unreasonable.' Nor, as the case progressed, did Plaintiffs conduct themselves in a manner that would justify us in finding that the district court's decision not to award fees was an abuse of discretion.”

The U.S. District Court for the Southern District of New York granted a motion for attorney fees by Universal Studios and its production company co-defendants in long-running copyright-infringement litigation over the movie Life. But the district court said it was “highly unlikely that [the pro se plaintiff] has anything like the resources available to defendants, for whom defending copyright lawsuits is a (perhaps unfortunate) regular cost of doing business. This factor may well limit the amount of fees that should be awarded in this case.” Hudson v. Universal Studios Inc., 04 Civ. 6997(GEL).

Gregory Hudson claimed that Life infringed on his plays Bronx House and No Harm, No Foul. The U.S. District Courts for the Eastern District of New York and the Southern District of New York both dismissed his claims. The studio defendants then sought modest attorney fees under Sec. 505 of the Copyright Act for prevailing on a motion for summary judgment filed to stop Hudson's suit in the Southern District regarding his play Bronx House.

The Southern District judge found Hudson's Bronx House claim to be objectively unreasonable. The judge observed that “no reasonable person could have believed that the minor similarities, intrinsic to any drama of unjustified incarceration, warranted a conclusion that the two works were similar. Hudson's play, set in the 1990s, involves a politically prominent white-collar offender who has to deal, over a week's imprisonment in the Bronx House of Detention, with violent gangs and other incidents of incarceration in a contemporary jail. Defendants' film, by contrast, is a largely comic drama set in a Mississippi prison, that deals with the life made by characters who [sic] are imprisoned for a period of sixty years.”

The district court explained in its attorney fees ruling: “Courts in this district have noted that a plaintiff's lack of resources is not relevant to whether an award of fees is appropriate, but that 'financial disparities may be a factor considered in determining the magnitude of an award once it has been resolved that such an award is appropriate.' ' As defendants correctly point out, Hudson has not properly documented his financial status, and thus, even if his financial condition were relevant to whether to grant a fee award, the record at this point is insufficient to support a conclusion that Hudson cannot afford to pay any part of defendants' fees, particularly where the reasonable expenses incurred by defendants has not yet been determined.”

Contrast the Hudson grant of attorney fees with a denial by the U.S. Court of Appeals for the Sixth Circuit of a defense motion for Sec. 505 attorney fees in Jones v. Blige, discussed starting on page 1 of this issue of Entertainment Law & Finance. Though the Sixth Circuit agreed that Mary J. Blige and her co-defendants were entitled to summary judgment in a copyright infringement suit over Blige's song “Family Affair,” the appeals court explained: “Plaintiffs produced evidence of the following: a validly copyrighted song, permission from an executive at Universal to submit a demo CD that included that song, assurance from a secretary that the executive would listen to the demo CD, and the return of the demo CD in a manner showing that someone had opened the package in which it was submitted. Defendants' evidence countering Plaintiffs' theory of access and showing independent creation was brought forth during discovery and was not available to Plaintiffs when they filed their suit. Furthermore, Plaintiffs offered expert testimony that the songs were similar, and although the testimony was excluded, its existence weighed against deeming the suit frivolous. Accordingly, Plaintiffs' case was not frivolous or 'objectively unreasonable.' Nor, as the case progressed, did Plaintiffs conduct themselves in a manner that would justify us in finding that the district court's decision not to award fees was an abuse of discretion.”