Case 1:07-cv-02250-DLC Document 41 Filed 03/18/08 Page 1 of 7
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`07 Civ. 2250 (DLC)
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`MEMORANDUM OPINION
`AND ORDER
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`CLIFTON MALLERY a/k/a ENJAI OMAA EELE
`and AMNAU KARAM EELE,
`Plaintiffs,
`
`-v-
`
`NBC UNIVERSAL, INC., NBC UNIVERSAL
`TELEVISION STUDIO, TAILWIND
`PRODUCTIONS, TIM KRING, DENNIS HAMMER,
`ALLAN ARKUSH, JEPH LOEB and BRYAN
`FULLER,
`Defendants.
`
`----------------------------------------
`
`Appearances:
`
`For Plaintiffs:
`John A. Coleman, Jr.
`Freidberg Cohen Coleman & Pinkas, LLP
`444 Madison Avenue, Suite 805
`New York, NY 10022
`
`For Defendants:
`Marcia Beth Paul
`Lacy H. Koonce
`Davis Wright Tremaine LLP
`1633 Broadway
`New York, NY 10019
`
`Hilary Lane
`NBC Universal, Inc.
`Legal Department
`30 Rockefeller Plaza
`New York, NY 10122
`
`DENISE COTE, District Judge:
`
`Plaintiffs Clifton Mallery a/k/a Enjai Omaa Eele and Amnau
`Karam Eele (“plaintiffs”) brought this action against the
`defendants NBC Universal, Inc., NBC Universal Television Studio,
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`07 Civ. 2250 (DLC)
`
`MEMORANDUM OPINION
`AND ORDER
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`----------------------------------------
`
`CLIFTON MALLERY a/k/a ENJAI OMAA EELE
`and AMNAU KARAM EELE,
`Plaintiffs,
`
`-v-
`
`NBC UNIVERSAL, INC., NBC UNIVERSAL
`TELEVISION STUDIO, TAILWIND
`PRODUCTIONS, TIM KRING, DENNIS HAMMER,
`ALLAN ARKUSH, JEPH LOEB and BRYAN
`FULLER,
`Defendants.
`
`----------------------------------------
`
`Appearances:
`
`For Plaintiffs:
`John A. Coleman, Jr.
`Freidberg Cohen Coleman & Pinkas, LLP
`444 Madison Avenue, Suite 805
`New York, NY 10022
`
`For Defendants:
`Marcia Beth Paul
`Lacy H. Koonce
`Davis Wright Tremaine LLP
`1633 Broadway
`New York, NY 10019
`
`Hilary Lane
`NBC Universal, Inc.
`Legal Department
`30 Rockefeller Plaza
`New York, NY 10122
`
`DENISE COTE, District Judge:
`
`Plaintiffs Clifton Mallery a/k/a Enjai Omaa Eele and Amnau
`Karam Eele (“plaintiffs”) brought this action against the
`defendants NBC Universal, Inc., NBC Universal Television Studio,
`
`
`
`
`
`
`
`Case 1:07-cv-02250-DLC Document 41 Filed 03/18/08 Page 2 of 7
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`Tailwind Productions, Tim Kring, Dennis Hammer, Allan Arkush,
`Jeph Loeb, and Bryan Fuller (“defendants”) alleging that the
`television series Heroes, which is (collectively) written,
`produced, and broadcast by the defendants, infringed the
`copyrights held by the plaintiffs in their 777-page handwritten
`novel The Twins: Journey of the Soul (“The Twins”), their short
`film based on The Twins entitled The Letter, and their painting
`series Envious of America. Defendants moved to dismiss, and the
`motion was converted to a motion for summary judgment and
`granted in an Opinion dated December 3, 2007. Mallery v. NBC
`Universal, Inc., No. 07 Civ. 2250 (DLC), 2007 WL 4258196
`(S.D.N.Y. Dec. 3, 2007) (the “December 2007 Opinion”). As the
`prevailing party in this copyright action, defendants have now
`filed an application for attorney’s fees pursuant to 17 U.S.C.
`§ 505 in the amount of $99,106.45. For the reasons stated
`below, that application is granted.
`
`DISCUSSION
`
`The Copyright Act permits a court “in its discretion” to
`award costs, including a “reasonable attorney’s fee,” to the
`prevailing party in a copyright infringement action. 17 U.S.C.
`§ 505. In deciding whether to award such costs and fees,
`courts may consider, among other factors, “frivolousness,
`motivation, objective unreasonableness (both in the factual and
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`Case 1:07-cv-02250-DLC Document 41 Filed 03/18/08 Page 3 of 7
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`in the legal components of the case) and the need in particular
`circumstances to advance considerations of compensation and
`deterrence.” Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19
`(1994) (citation omitted). The Court of Appeals has held that
`the factor of “objective unreasonableness” should be given
`“substantial weight” in conducting the analysis called for in
`Fogerty, Matthew Bender & Co., Inc. v. West Publ’g Co., 240 F.3d
`116, 122 (2d Cir. 2001), and courts of this Circuit have awarded
`fees under § 505 based on a finding of objective
`unreasonableness alone. See, e.g., Adsani v. Miller, No. 94
`Civ. 9131 (DLC), 1996 WL 531858, *13 (S.D.N.Y. Sept. 19, 1996)
`(citing cases); see also Baker v. Urban Outfitters, Inc., 431 F.
`Supp. 2d 351, 357 (S.D.N.Y. 2006). In any event, these factors
`must be applied in a manner that is “faithful to the purposes of
`the Copyright Act,” Fogerty, 510 U.S. at 534 n.19, which is
`“‘[t]o promote the Progress of Science and useful Arts.’” Id.
`at 527 (quoting U.S. Const. art. I, § 8, cl. 8)). As both the
`prevention of infringement and the successful defense of
`unmeritorious copyright claims can further this goal, the
`Supreme Court has held that awards under § 505 are equally
`available to prevailing defendants and prevailing plaintiffs.
`Id. at 526-27, 533.
`
`Although a finding that a defendant is entitled to summary
`judgment does not automatically entitle that defendant to
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`Case 1:07-cv-02250-DLC Document 41 Filed 03/18/08 Page 4 of 7
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`attorney’s fees pursuant to § 505, see Adsani, 1996 WL 531858,
`at *16 (citing CK Co. v. Burger King Corp., No. 92 Civ 1488
`(CSH), 1995 WL 29488, *1 (S.D.N.Y. Jan. 26, 1995)), the December
`2007 Opinion demonstrates that the plaintiffs’ copyright
`infringement claims were objectively unreasonable. As described
`in that Opinion, a careful review of the plaintiffs’ works and
`Heroes television program reveals that the plaintiffs’ “claims
`are wholly without merit, as nearly every instance of alleged
`similarity between Heroes and the plaintiffs’ work relates to
`unprotectable ideas rather than protectable expression and,
`viewed more broadly, the ‘total concept and feel’ of these works
`are profoundly different.” December 2007 Opinion, at *6
`(quoting Castle Rock Entm’t, Inc. v. Carol Publ’g Group, Inc.,
`150 F.3d 132, 140 (2d Cir. 1998)). In particular, the
`plaintiffs’ argument that the use of a “stopping the
`catastrophe” story arc, symbols, close-up images of eyes, “twin”
`characters (i.e., characters that often appear together on
`screen), and block lettering in title sequences made Heroes and
`the plaintiffs’ works substantially similar bordered on the
`frivolous, both legally and factually. Id. at *7. The
`comparison plaintiffs attempted to draw between Isaac Mendez of
`Heroes and the characters depicted in the plaintiffs’ work was
`likewise objectively unreasonable as a matter of law, id. at *6,
`and fact. Id. at *7.
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`Case 1:07-cv-02250-DLC Document 41 Filed 03/18/08 Page 5 of 7
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`Plaintiffs argue in opposition to the fee application that
`“determinations about substantial similarity are rarely
`obvious,” citing Pasillas v. McDonald’s Corp., 927 F.2d 440, 444
`(9th Cir. 1991), and that the plaintiffs “truly believe” that,
`in light of alleged similarities, defendants did copy their
`work. Even assuming the truth of both of these statements,
`however, plaintiffs’ claims remain objectively unreasonable, as
`the profound dissimilarity between their works and Heroes was
`indeed “obvious” in this case, and plaintiffs’ professed
`subjective belief to the contrary is thus itself unreasonable
`and entitled to no weight here. In addition, an award under
`§ 505 in this case would “advance considerations of compensation
`and deterrence,” Fogerty, 510 U.S. at 534 n.19 (citation
`omitted), as “failing to award attorney’s fees to defendants
`. . . would invite others to bring similarly unreasonable
`actions without fear of any consequences.” Earth Flag Ltd. v.
`Alamo Flag Co., 154 F. Supp. 2d 663, 668 (S.D.N.Y. 2001). It is
`therefore appropriate to award attorney’s fees to the defendants
`under § 505.
`Thus, it is now necessary to consider whether the
`$99,106.45 requested by the defendants represents a “reasonable
`attorney’s fee.” 17 U.S.C. § 505. In making this
`determination, courts should apply “the lodestar method,” which
`“emphasiz[es] a comparison to rates of lawyers of similar skill
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`Case 1:07-cv-02250-DLC Document 41 Filed 03/18/08 Page 6 of 7
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`and experience in the community,” Crescent Publishing Group,
`Inc. v. Playboy Enters., Inc., 246 F.3d 142, 150 (2d Cir. 2001)
`(citing Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983) (42
`U.S.C. § 1988)), while keeping in mind that, “for prevailing
`parties with private counsel, the actual billing arrangement”
`should be considered “a significant, though not necessarily
`controlling, factor in determining what fee is ‘reasonable.’”
`Id. at 151.
`Defendants have submitted in support of their application
`detailed billing reports stating the rates charged by defense
`counsel and the hours spent on each litigation task. Plaintiffs
`do not argue that defense counsel’s rates are unreasonable, but
`rather that the time spent drafting the defendants’ motion
`papers -- 145.5 hours, by plaintiffs’ count -- “seems
`excessive.” Having reviewed the billing records, as well as
`defendants’ submissions in connection with the motion to
`dismiss, plaintiffs’ argument on this point is rejected. The
`plaintiffs’ claims stemmed from a sprawling tale in a lengthy
`hand-written novel, a film, and a series of paintings, and a
`host of alleged similarities with a successful television
`series. To address the entirety of the plaintiffs’ claims, it
`was entirely reasonable for the defendants to expend this effort
`on their motion practice.
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`Case 1:07-cv-02250-DLC Document 41 Filed 03/18/08 Page 7 of 7
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