UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF WISCONSIN
`
`BROWNMARK FILMS LLC,
`
` Plaintiff,
`v.
`
`COMEDY PARTNERS,
`MTV NETWORKS,
`PARAMOUNT PICTURES
`CORPORATION, SOUTH PARK
`DIGITAL STUDIOS LLC, and
`VIACOM INTERNATIONAL INC.,
`
` Defendants.
`
`Case No. 10-CV-1013-JPS
`
`ORDER GRANTING
`ATTORNEY FEES
`AND COSTS
`
`On July 6, 2011, this Court dismissed Brownmark Films’ suit with
`prejudice. (Docket #23). Brownmark has since appealed that decision.
`(Docket #26).
`However, the issue of attorney fees and costs still remains with this
`Court for decision. The parties have filed numerous documents on this issue.
`Aside from the standard issues of attorney fees and costs, the parties’ filings
`also raise several procedural issues. After recounting the case background,
`the Court must dispense with those procedural issues first. The Court will
`then turn to the issue of attorney fees and costs, ultimately granting the
`defendants’ motions for costs and fees.
`1.
`Background
`
`Brownmark initiated this suit in November 2010, alleging willful
`copyright violation by the defendants. Brownmark sought: (1) statutory
`damages; (2) a declaration that the defendants willfully, both directly and
`secondarily, infringed upon Brownmark’s copyrights; (3) an injunction
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`requiring the defendants to cease any direct or indirect infringement; and (4)
`further relief, including attorneys’ fees and pre- and post-judgment interest.
`(Docket #1).
`Rather than submit an answer, on February 22, 2011, defendants filed
`a motion to dismiss. (Docket #8). After Brownmark’s response and the
`defendants’ reply were filed, the Court granted the defendants’ motion.
`(Docket #16, #22, #23). On July 6, 2011, the Court dismissed all of
`Brownmark’s claims, finding that the defendants’ actions were protected as
`fair use. (Docket #23). Brownmark has appealed this decision to the United
`States Court of Appeals for the Seventh Circuit. (Docket #26–#30).
`The defendants, as prevailing parties in the District Court, then filed
`the present motion seeking attorney fees and costs. (Docket #34). The issue
`has now been fully briefed. (Docket #34–#42). To provide an adequate basis
`on which to decide this issue, the Court will first set forth the factual basis for
`Brownmark’s suit, as well as the procedural posture of this case.
`1.1
`Brownmark’s Copyright Claims
`
`Brownmark is a purported co-owner of a copyright in the “What What
`(In the Butt)” music video (“WWITB”). (Am. Compl. ¶¶ 11-13). The video
`features a male vocalist repeatedly singing the title of the video and several
`derivations thereof accompanied by a series of surreal images. Perhaps
`
`unsurprisingly, the video went “viral,” and currently has over 43 million
`
`views on Youtube.1
`Shortly thereafter, the defendants aired an episode of the television
`series South Park, titled “Canada on Strike,” in which one of the show’s
`
` Samwell, “What What (In the Butt).” Uploaded Feb. 14, 2007, by
`1
`Brownmark Films. Available at: http://www.youtube.com/watch?v=fbGkxcY7YFU.
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`characters creates a video that is very similar to Brownmark’s original
`WWITB video. (Am. Compl. ¶ 14). In the South Park version, which lasts
`fifty-eight seconds, the South Park character sings many of the same lyrics as
`are featured in the original WWITB video; the South Park version also
`
`features surreal imagery, similar to that in the original. (Id.). In the
`
`episode—much like in reality for Brownmark—the character’s video becomes
`
`a viral hit. (Id.). However, much to the chagrin of the South Park
`
`characters—and in a result that may mirror reality a bit too closely for
`Brownmark—there are no riches of “internet money” to be had, despite the
`popularity of their work. In a classic bit of art imitating and commenting
`upon life, the South Park characters learn that it is difficult to convert viral
`internet fame into real money; Brownmark’s proprietors have undoubtedly
`learned much the same.
`1.2
`Case History
`
`As mentioned above, Brownmark filed this case in November of 2010,
`after which time they filed an amended complaint in January of 2011. (Docket
`#1, # 6).
`In February 2011, the defendants filed a motion to dismiss. (Docket
`#8). In their brief in support of that motion, the defendants argued that
`Brownmark lacked standing to prosecute the action. (Def.’s Br. in Supp.,
`9–10). The defendants also argued that the South Park replica was parody,
`and thus protected as fair use. (Def.’s Br. in Supp., at 10–21).
`Brownmark filed their response in March of 2011, arguing that they
`had standing to sue and also that the defendants’ Motion to Dismiss was
`improper, due to its being based on an affirmative defense. (Pl.’s Resp., 1–5).
`Brownmark’s response was devoted primarily to the latter point, and did not
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`directly respond to the defendants’ claims of fair use. (Pl.’s Resp., at 3–5). The
`defendants then took these arguments up in their reply brief, urging the
`Court to decide the fair use issue at the pleading stage.
`The Court did just that in its July 6, 2011 order. After finding that
`Brownmark had standing to sue, the Court addressed the separate
`procedural and substantive issues of the defendants’ fair use argument. On
`the procedural side of the issue, the Court held that it could address the
`defendants’ affirmative defense of fair use at the pleading stage, because
`Brownmark’s complaint and centrally-related materials “set forth everything
`necessary to satisfy the affirmative defense.” (Order Granting Mot. Dismiss,
`
`13 (quoting Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009))). The Court noted
`
`that the evaluation of an affirmative defense at the pleading stage is
`
`“‘irregular.’” (Id., at 14 (quoting Chicago Bd. of Educ. v. Substance, Inc., 354 F.3d
`
`624, 627 (7th Cir. 2003))). But, in the end, the Court decided to address the
`issue, concluding that the dispute “‘simply does not warrant putting the
`defendant through the expense of discovery,’” when considering that the
`entire dispute between the parties could be solved much more efficiently by
`resolving the substantive underlying issue at the pleading stage. (Order
`
`Granting Mot. Dismiss, 14 (quoting Atkins v. City of Chicago, 631 F.3d 823, 832
`
`(7th Cir. 2011))).
`Thus, the Court turned to the substantive fair use issue, and concluded
`that the case should be dismissed at the pleading stage, because the
`defendants’ work is entitled to fair use protection. (Order Granting Mot.
`Dismiss, 19). In reaching its decision, the Court found that the factors of fair
`use weighed in favor of the defendants: (1) the “purpose and character” of
`the South Park replica was both a parody and also transformative of the
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`original; (2) the nature of the copyrighted work—while copied in some
`ways—was of little help to the Court, because the South Park version was a
`parody, the nature of which practically requires the copying of a publicly-
`known work; (3) the South Park version, in fact, used relatively little of the
`original copyrighted work, and did not mirror the original; and (4) the South
`Park version is unlikely to usurp any of the market demand for the original.
`
`(Id., at 17–19).
`
`For those reasons, the Court held that the defendants’ use was fair.
`(Ord. Granting Mot. Dismiss, at 19). Thus, their work was protected by that
`affirmative defense, and the Court dismissed Brownmark’s claims with
`prejudice. (Ord. Granting Mot. Dismiss, at 20). Brownmark has appealed the
`Court’s decision to the United States Court of Appeals for the Seventh
`Circuit. (Docket # 26–30).
`Meanwhile, the defendants’ Motion for Attorney Fees and Costs still
`remains before this Court. (Docket #34). On August 3, 2011, Brownmark filed
`both a request for adversary submissions and its response to the defendants’
`motion on the fees and costs issue. (Docket #36, #37). The defendants then
`filed their reply brief, on August 17, 2011. (Docket #38). Afterward, on
`August 23, 2011, Brownmark submitted a flurry of documents: two motions
`and a reply, all of which are related to the issue of attorney fees. (Docket #39,
`#40, #41). Finally, on August 30, 2011, the defendants submitted a brief
`opposing Brownmark’s three August 23, 2011 filings. (Docket #42).
`By order, on September 27, 2011, the Court struck what it deemed to
`be an unauthorized sur-reply brief submitted by Brownmark. (Docket #43).
`The Court also ordered that the parties submit briefs addressing the
`defendants’ objections to several pieces of evidence submitted by
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`Brownmark in support of their opposition to defendants’ request for
`attorneys’ fees. (Docket #43).
`2.
`Analysis
`
`In order that it can make its fees decision on the appropriate record,
`the Court will first resolve the defendants’ objections to the evidence
`submitted by Brownmark. After addressing those objections, the Court will
`move to the defendants’ motion for attorneys’ fees.
`2.1 Defendants’ Evidentiary Objections
`
`On August 23, 2011, Brownmark filed three separate documents. The
`Court has already addressed one of those documents: Brownmark’s
`
`unauthorized sur-reply brief. (See Docket #43 (disregarding Docket #41)). As
`
`discussed above, by its September 27, 2011 order, the Court effectively struck
`Brownmark’s unauthorized sur-reply. (Docket #43). By the same order, the
`Court also requested that the parties brief the issue of the defendants’
`objections to several of Brownmark’s evidentiary submissions. (Docket #43).
`Having received the parties’ briefs, the Court will now address that issue.
`The defendants argue that the Court should strike portions of
`declarations submitted by Brownmark’s attorneys, Caz McChrystal
`(“McChrystal”) and Bobby Ciraldo (“Ciraldo”). (Docket #44: Def.’s Mem. in
`Supp. Obj. Ev. at 1). Specifically, with regards to the McChrystal declaration,
`the defendants object to the fact that McChrystal included legal analysis and
`conclusions in his declaration, as support for Brownmark’s contention that
`their position was reasonable.
`The Court agrees and will, therefore, strike paragraphs five through
`twenty-six of McChrystal’s declaration. Those paragraphs are replete with
`legal conclusions and references to case law, all of which appear to be
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`intended to bolster Brownmark’s legal argument that their position was
`reasonable. (McChrystal Decl. ¶¶ 5–26). While the Court understands
`McChrystal’s desire to set forth facts that establish his reliance on case law,
`the Court believes that statements like McChrystal’s are much better suited
`to a legal brief. In fact, if McChrystal merely relied on his statements to
`
`establish the fact that he relied on certain cases or statutes, the Court would
`
`be inclined to allow his declaration to stand. But, instead, in his declaration,
`
`McChrystal goes so far as to address arguments made by the defendant (see,
`
`e.g., McChrystal Decl. ¶ 7, 14), apply the fair use factors and case law to
`
`Brownmark’s claim (see, e.g., McChrystal Decl. ¶¶ 12, 13, 20, 23), and make
`
`further legal accusations against the defendants (see, e.g., McChrystal Decl.
`
`¶ 15 (“the Defendants did not more than use the WWITB video in a
`humorous fashion to poke fun at the viral video phenomenon, Internet
`celebrity, and …[the] musical composition”), ¶ 18 (“the Defendants’ use of
`the WWITB video is not of a strong transformative nature”). He does all of
`this without ever making a prefatory statement that he is merely establishing
`the fact that he researched and relied upon the cited arguments and cases in
`reaching a decision to bring a claim.
`Therefore, the Court agrees with the defendants, and finds that
`paragraphs five through twenty-six of McChrystal’s declaration contain
`improper legal conclusions and argumentation that are impermissible in an
`
`declaration. (Def.’s Mot. in Supp. Obj. Ev. 2–3 (citing Chen v. Mayflower
`
`Transit, 315 F. Supp. 2d 886, 923 (N.D. Ill. 2004), Vasquez v. Central States Joint
`
`Board, 2006 U.S. Dist. LEXIS 11355, at *31–*32 (N.D. Ill. March 15, 2006))). As
`
`such, the Court is obliged to strike paragraphs five through twenty-six of
`McChrystal’s declaration. (Docket #37, Ex. A).
`
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`The Court next turns to the defendants’ objections to Ciraldo’s
`declaration. The defendants object on multiple grounds, and the Court will
`address each objection by the defendants’ legal argument against it: first,
`hearsay; second, best evidence rule; third, relevance; fourth speculation; and,
`fifth, defendants’ specific argument against Ciraldo’s side-by-side
`comparison of the WWITB with South Park’s version.
`First, with relation to defendants’ hearsay objections, the Court will
`not strike Ciraldo’s statements. Brownmark argues that each of the
`statements to which the defendants object are asserted to show that
`Brownmark filed its suit as a result of its belief that an active market existed
`for its work, leading Brownmark to its conclusion that it had not received fair
`compensation for the defendants’ use of the WWITB video. (Pl. Resp. Obj. Ev.
`6). That fact, Brownmark asserts, shows that it did not have an improper
`motive for filing the case. (Pl. Resp. Obj. Ev. 6). The Court agrees: Ciraldo’s
`declaration references statements of others that show specific instances of
`other attempts or interest in licensing the WWITB video. But, Brownmark is
`not relying on those statements to show that specific parties had made
`requests to license the WWITB video; rather, Brownmark uses Ciraldo’s
`statements to show a general demand in the market and that Brownmark
`had a proper motive to bring this suit. As such, the Court will not strike
`paragraphs six, seven, eleven, fourteen, or sixteen, as being improper
`hearsay.
`Second, the Court turns to the defendants’ best evidence rule
`objections to paragraphs six, seven, eight, ten, twelve, sixteen, and eighteen;
`the Court overrules those objections, as well. The best evidence rule requires
`
`that original versions of documents be submitted if the contents of those
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`documents are being admitted. See Fed. R. Ev. 1002, 1004. The defendants’
`
`objections hit a snag due to the fact that Brownmark does not rely on the
`contents of the documents it discusses, but, as above, discusses those
`documents in arguing that an active market existed for the WWITB video.
`Therefore, the lack of original documents does not create best evidence rule
`problems.
`Third, the Court addresses the defendants’ relevance objections to
`paragraphs six, seven, and eleven. (Def. Mem. Supp. Obj. Ev. 6). The
`defendants argue that licensing agreements with outside parties are
`irrelevant, but the Court disagrees. A portion of the inquiry into whether to
`award attorneys’ fees requires the Court to consider whether Brownmark
`acted reasonably in brining this suit. As already discussed, evidence of an
`active market may factor into the Court’s determination as to whether it was
`reasonable for Brownmark to bring this suit. As such, the Court finds
`paragraphs six, seven, and eleven relevant to the issue at hand, and will not
`strike those portions of Ciraldo’s declaration.
`Fourth, the Court examines and agrees with Brownmark’s argument
`that the defendants placed Brownmark’s subjective motivations at issue and,
`thus, the personal beliefs of Ciraldo is admissible. (Pl. Resp. Obj. Ev. 8–9). The
`defendants have argued that Brownmark’s motivation is “questionable” (Def.
`Mem. Atty. Fee 9–10); as such, Ciraldo’s statements regarding his personal
`beliefs should be admitted as probative of his motivation as a member of
`Brownmark. While the Court will treat those statements cautiously, as
`Ciraldo’s credibility may be questioned as an interested party, the Court will
`not strike them.
`
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`Finally, with regard to the defendants’ Miracle Blade argument that
`
`Ciraldo’s side-by-side comparison of the two works in question (Ciraldo
`Decl. ¶ 35, App. 1), the Court finds no reason to strike Ciraldo’s comparison.
`In that case, the court objected to—but ultimately admitted—a summary
`
`comparison between two works. Miracle Blade, LLC v. Ebrands Commerce
`
`group, LLC, 207 F. Supp. 2d 1136, 1145–1146 (D. Nev. 2002). But, there, the
`
`court’s objection to the summary was that the defendants had not complied
`with Rule 1006 of the Federal Rules of Evidence by submitting a copy to the
`
`other party prior to its admission. Id., at 1146. The Court ultimately admitted
`
`the summary, though, because the plaintiff had “sufficient opportunity and
`
`notice to attempt to retrieve [the] materials.” Id. The only portion of the
`
`summary that the court in that case struck was a legal conclusion stated by
`
`the declarant. Id., at 1145 (stating that the summary “clearly shows that there
`
`is no copyright infringement”).
`
`Miracle Blade does not require that the Court strike Ciraldo’s side-by-
`
`side summary comparison. To begin, the defendants have not argued that
`any of Ciraldo’s comparison reaches an improper legal conclusion. Further,
`the defendants have not made a Rule 1006 objection to the comparison,
`
`which would seem to be the proposition for which Miracle Blade stands most
`
`strongly. See id., at 1146. Even so, the Court sides with the Miracle Blade
`
`decision, finding that—even if there were a Rule 1006 problem—the
`defendants have viewed and acknowledged the similarities between the two
`videos on multiple occasions. In fact, the similarities between the videos is
`at the heart of this lawsuit. A summary of the similarities does not disservice
`the defendants and, therefore, the Court will not strike Ciraldo’s side-by-side
`comparison. (Ciraldo Decl., App. 1).
`
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`To summarize, the Court strikes paragraphs five through twenty-six
`of McChrystal’s declaration, but leaves Ciraldo’s declaration fully intact.
`2.2
`Defendants’ Entitlement to Attorneys’ Fees and Costs
`
`Having decided the record upon which to determine the issue of
`attorneys’ fees, the Court now turns its attention to that matter.
`The Copyright Act grants courts discretion to award reasonable
`attorneys’ fees and costs to prevailing parties in civil copyright actions.
`17 U.S.C. § 505. In determining whether to exercise that discretion and award
`costs and fees, the Court may look to a number of nonexclusive factors
`accepted by the Supreme Court: (1) the objective unreasonableness of the
`action; (2) the losing party’s motivations for filing or contesting the action; (3)
`the frivolousness of the action; and (4) the need to “advance considerations
`
`of compensation and deterrence.” Fogerty v. Fantasy, Inc., 510 U.S. 517, 535
`
`n. 19 (1994) (quoting Lieb v. Topstone Industries, Inc., 788 F.2d 151, 156 (3rd Cir.
`
`1986) (internal quotations omitted)).
`The Seventh Circuit has refined this standard further. According to the
`Seventh Circuit, the “two most important [of these] considerations…are the
`strength of the prevailing party’s case and the amount of damages or other
`
`relief the party obtained.” Assessment Techs. of Wisconsin, LLC v. Wire Data,
`
`Inc., 361 F.3d 434, 436 (7th Cir. 2004). Furthermore, the Seventh Circuit has
`
`specifically noted that, while “prevailing plaintiffs and prevailing defendants
`are to be treated alike,” the presumption in favor of awarding fees to a
`
`prevailing defendant is “very strong.” Id., at 436–37 (refining Fantasy, 510
`
`U.S. at 534; citing Diamonds Star Building Corp. v. Freed, 30 F.3d 536, 506 (4th
`
`Cir. 1994)).
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`Applying the factors discussed by the Supreme Court, taken in
`conjunction with the Seventh Circuit’s presumption in favor of prevailing
`defendants, the Court finds that the defendants’ are entitled to attorneys’ fees
`and costs.
`To begin, the defendants’ fair-use argument was very strong, and
`Brownmark’s legal position was objectively unreasonable. The Court took
`the somewhat rare step of deciding this case at the motion to dismiss stage,
`precisely because the defendants’ fair-use defense was so strong, satisfying
`all four fair-use factors. First, the Court found that South Park’s work was a
`“clear” parody, which one could gather quickly and easily from watching the
`episode. Second, South Park’s version of the video was transformative, using
`the series’ own characters and a different recording of the song, even if the
`words and images were similar. Third, even with those similarities, South
`Park made many changes to the form of the original and used only enough
`lines to conjure up the original. South Park’s use was insubstantial. And,
`fourth, the Court found that South Park’s version of the video would not
`usurp the market for Brownmark’s original. In fact, in this respect, it is most
`likely that South Park’s use would have spurred demand for the original,
`making the viral video’s spread more rapid after its exposure to a national
`television audience. The satisfaction of these factors shows that the
`defendants’ case was very strong.
`Inquiring further, the Court finds that Brownmark’s legal positions
`were also objectively unreasonable, and thus their position was frivolous. To
`this Court, there is little that could justify the plaintiff’s stated view that the
`South Park version was not parody. Brownmark argues that South Park’s
`clip could be viewed as satire, and would thus require a heightened amount
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`of transformation to be a fair use. (See Pl.’s Resp. Atty. Fee 8–9 (citing
`
`Campbell v. Acuff-Rose Music, 510 U.S. 569, 580 (1994))). This argument fails
`
`for two reasons. Not only was South Park’s video a parody, but South Park
`substantially transformed its version from the original. South Park did not
`directly copy Brownmark’s original video and insert it into the episode;2
`rather, South Park created a video that purposefully mocked the obscure
`images and song of the original, all in an attempt to poke fun at the original,
`its viral popularity, and internet crazes as a whole. It may have been
`intended partially as satire, but also clearly encompassed elements of parody.
`And, further, given the transformative nature of the use and the lampooning
`Brownmark’s original received, there is ample reason to believe that South
`Park’s use would have greater spurred the market for the original. In the
`internet era, with information freely and quickly accessible, viewers
`interested in South Park’s version could turn to the internet to find a copy of
`the original. And any confusion over which version was the original could
`be supplied to online viewers through a statement at the video’s web page.
`For all of these reasons, the Court finds that Brownmark was objectively
`unreasonable in its position that South Park’s use was not fair.
`
`Brownmark argues that the defendants’ produced a “near-verbatim copy,
`2
`merely compressed in time and swapping out the original singer for a different
`one.” The Court would add that these changes are substantial. While the words
`may be practically verbatim, there are few words to begin with. Further,
`particularly important in the eyes of the Court is the fact that the different singer
`is a very young cartoon character. These two major differences change the nature
`of the video, from one that is patently absurd, to one that parodies the original by
`creating an even more absurd product. Despite any shot-for-shot similarities, as has
`been catalogued by Ciraldo (Ciraldo Decl., App. 1), the Court finds that these
`changes make the use very transformative.
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`Further, the Court is convinced that Brownmark’s motivation in filing
`this suit was questionable. Not only was Brownmark’s position
`unreasonable, but it also waited nearly two years to file a lawsuit, only after
`being repeatedly rejected with warnings that South Park’s use was
`copyrighted. (Docket #34, Ex. B). This demonstrates an attempt by
`Brownmark to use the threat of litigation against the defendants as a sort of
`“sword of Damocles”—hanging by a thread over the heads of the defendants
`while Brownmark attempted to extract a licensing fee. Of course, when the
`thread finally snapped and Brownmark brought this action, the parties
`quickly found the “sword” to be nothing more than a flimsy replica, as the
`Court dismissed the case outright at its earliest stage.
`Next, the Court also must note that an award of attorneys’ fees in this
`case will deter future actions by those similar to Brownmark; the Court is not
`entirely comfortable with this fact, though. The defendants in this case are
`sophisticated business entities with worldwide connections. Brownmark, on
`the other hand, is a very small company which can hardly bear the same
`costs as the defendants. Therefore, the Court must walk a fine line between
`one side of protecting the rights of defendants to parody others’ works
`without being dragged into the legal muck for unreasonable claims and the
`other side of steering away from effectively robbing smaller plaintiffs of their
`artistic rights in their own work. While Brownmark’s legal action was
`unreasonable, the Court fears that imposing financial ruination on a small
`company, like Brownmark, for an attempt to protect its rights might result
`in similarly-situated plaintiffs with stronger claims refraining from
`enforcement.
`
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`Despite that potential, though, the Court finds that an award of
`attorneys’ fees in this case would deter future action that is similar to
`Brownmark’s. As to the risk of keeping small plaintiffs out of court, the
`Court notes two things: first, that as important as those plaintiffs’ artistic
`rights may be, the freedom of speech is perhaps of greater concern; and,
`second, that plaintiffs will not be subject to these fees if they engage in
`meaningful settlement talks before bringing their suit, work to resolve the
`case without court intervention, and reasonably consider the defendants’
`potential defenses.
`Because the Court finds that all of the Supreme Court’s factors are
`met, the defendants are entitled to attorneys’ fees and costs in this case. This
`conclusion is strengthened by the Seventh Circuit’s presumption that
`
`prevailing defendants are entitled to such fees and costs. Assessment Techs.,
`
`361 F.3d at 436.
`2.3
`Reasonableness of Costs and Fees
`
`In total, the defendants request $46,775.23 in attorneys’ fees. Of that
`amount, approximately $3,500 was spent on initial discussions with the
`defendant parties and drafting the defendants’ letter response to Brownmark
`(Docket #34, Ex. I at 39–43 (Billing Periods for Sep. 30, 2008, and Oct. 31,
`2008)); another $7,500 was billed for reviewing the law, Brownmark’s
`complaint, and potential strategies prior to filing a motion to dismiss (Docket
`#34, Ex. I at 43–51 (Billing Periods for Oct. 31, 2008, Feb. 28, 2009, and Dec. 31,
`2010)); then $17,000 was billed for the preparation and filing of the
`defendants’ motion to dismiss (Docket #34, Ex. I at 52–60 (Billing Periods for
`Jan. 31, 2011, and Feb. 28, 2011)); and, finally, approximately $9,500 was spent
`in preparation of the defendants’ reply brief and other administrative matters
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`(Docket #34, Ex. I at 61–70 (Billing Periods for March 31, 2011, April 30, 2011,
`May 30, 2011, and June 30, 2011)); additional related services, provided by
`local counsel, also contributed approximately $10,000 to the final sum
`requested by the defendants (Docket #34, Ex. J).
`The total calculation provided by the defendants, or the lodestar
`figure, is presumptively reasonable when the party seeking attorneys’ fees
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`has shown the rate and number of hours worked is reasonable. Blum v.
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`Stenson, 465 U.S. 886, 897 (1984).
`
`Brownmark does not dispute the reasonableness of the rates charged
`by the defendants’ attorneys, but takes issue with a good portion of the hours
`worked by the defendants’ attorneys. The Court finds those objections
`unpersuasive. Brownmark first argues that pre-suit costs cannot be awarded
`under Section 505. But Brownmark cites only its own interpretation of the
`language in that statute and a case that does not seem to support the
`
`proposition. (Pl.’s Resp. Atty. Fee 18–19 (citing Lenz v. Universal Music Corp.,
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`2010 U.S. Dist. LEXIS 125874 (N.D. Cal. 2010))). The Court believes that the
`defendants advocate a wiser course: allowing recovery of pre-suit fees.
`(Def.’s Reply Atty. Fee 11–12). In contrast to Brownmark, the defendants
`have cited ample case law that supports the imposition of pre-suit fees,
`including in a case similar to this one. (Def.’s Reply Atty. Fees 11–12 (citing
`
`Mattel, Inc. v. MGA Entm’t, Inc., 2011 U. S. Dist. LEXIS 85998 (C.D. Cal.
`
`August 4, 2011) and other non-copyright cases)).
`Next, Brownmark argues that any hours worked that were not
`catalogued as specifically related to the defendants’ fair use argument should
`be treated as inadequately documented and, therefore, not charged to
`
`Brownmark. (Pl.’s Resp. Atty. Fees 19–20 (citing Ohio-Sealy Mattress Mfg. Co.
`
`Page 16 of 19
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`Case 2:10-cv-01013-JPS Filed 11/30/11 Page 16 of 19 Document 47
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`

`
`v. Sealy, Inc., 776 F.2d 646, 651 (7th Cir. 1985), Buckhannon Board & Care Home,
`
`Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 604
`
`(2001))). According to Brownmark, the defendants’ fees that are attributable
`to the fair use argument amount to less than $10,000. (Pl.’s Resp. Atty Fees
`20). Again, though, the defendants have the best of the argument: the
`“central issue” of this entire litigation was the fair use issue. That issue
`consumed much of the pre-lawsuit discussions and a large chunk of the
`briefs filed on the motion to dismiss.
`While the Court disagrees with Brownmark’s arguments for docking
`the reasonable number of hours worked, the Court will, nonetheless, dock
`that number of hours as unduly duplicative. After reviewing the initial letter
`sent by the defendants to Brownmark, the defendants’ brief in support of
`their motion to dismiss, and the defendants’ reply brief on that matter, the
`Court determines that the defendants’ attorneys were able to reuse
`significant portions of their research in preparing each item. As such, the
`Court finds that the defendants billed an unreasonable number of hours in
`the preparation of each of those items. Accordingly, the Court docks one-half
`of the number of hours spent in preparation of the brief in support and the
`reply brief, effectively reducing the total fee by approximately $12,750. The
`Court also finds that approximately one-half of local counsel’s time was
`spent in preparation of the same materials, and docks one-half of that
`amount, or approximately $2,500. In sum, the Court docks approximately
`$15,250 of the total $46,775.23 sought by the defendants, leaving $31,525.23.
`However, the Court will also exercise its discretion and limit
`Brownmark’s fee liability to a much smaller amount than even the reduced
`$31,525.23 figure. Despite all that has come before in this case, the Court
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`Page 17 of 19
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`Case 2:10-cv-01013-JPS Filed 11/30/11 Page 17 of 19 Document 47
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`

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`remains cognizant of the fact that Brownmark is a very small entity, without
`extensive assets. The Court has discretion in determining an award of
`attorneys’ fees under Section 505, and may exercise that discretion to reduce
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`a fee, taking into account the financial circumstances of a party. Sassower v.
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`Field, 973 F.2d 75, 81 (2d Cir. 1992), Lieb v. Topstone Indus., Inc., 788 F.2d 151,
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`156 (3d Cir. 1986), Quaglia v. Bravo Networks, 2006 U.S. Dist. LEXIS 67123, at
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`*5 (D. Mass. Sep. 19, 2006), Polsby v. St. Martin’s Press, Inc., 2000 U.S. Dist.
`
`LEXIS 596, at *7 (S.D.N.Y. Jan. 18, 2000), Littel v. Twentieth-Century Fox Film
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`Corp., 1996 U.S. Dist. LEXIS 454, at *3 (S.D.N.Y. Jan. 17, 1996). “[T]he aims of
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`the Copyright Act are compensation and deterrence where appropriate, but
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`not ruination.” Lieb, 788 F.2d at 156.