Case 1:17-cv-01649-BMC Document 26 Filed 07/19/17 Page 1 of 14 PageID #: 532
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`IAN SCHLEIFER,
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`KITTEE BERNS,
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`Plaintiff,
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`-against-
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`Defendant.
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`COGAN, District Judge.
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`MEMORANDUM
`DECISION AND ORDER
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`17 Civ. 1649 (BMC)
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`Plaintiff brings this copyright infringement action alleging that defendant’s Ethiopian
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`cookbook violates the copyright that plaintiff has on his own previously published Ethiopian
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`cookbook. Before me is defendant’s motion to dismiss the amended complaint pursuant to
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`Federal Rule of Civil Procedure 12(b)(6), as well as her motion for attorney’s fees and sanctions.
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`For the reasons that follow, defendant’s motion to dismiss is granted. Moreover, because
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`plaintiff’s complaint has no legal or factual basis, defendant’s motions for attorney’s fees under
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`the Copyright Act and for sanctions against plaintiff’s attorneys are granted.
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`BACKGROUND
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`Plaintiff Ian Schleifer published his Ethiopian cookbook, Ethiopian-Inspired Cooking:
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`Vegetarian Specialties, in May 2007 under the pen name “Ian Finn” (the “2007 Schleifer
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`Cookbook”). The 2007 Schleifer Work included 17 pages of written content, including 11
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`recipes, and three pages of photographs, for a total of 20 pages. The 2007 Schleifer Work’s
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`thirteen-digit international standard book number (“ISBN-13”) is 9780979627101. It appears
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`that there are two versions of the cookbook bearing this ISBN-13. The second version is being
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`sold on Amazon (the “2007 Amazon Schleifer Cookbook”), and it indicates that it was published
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`in 2007. However, this may not be accurate because the 2007 Amazon Schleifer Cookbook
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`Case 1:17-cv-01649-BMC Document 26 Filed 07/19/17 Page 2 of 14 PageID #: 533
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`references a cookbook plaintiff published in September 2008, so it appears that the 2007
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`Amazon Schleifer Cookbook was published after that date. Moreover, the 2007 Amazon
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`Schleifer Cookbook is almost twice as long: The 2007 Amazon Schleifer Cookbook is 46 pages,
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`including 11 recipes, as compared to the original 2007 Schleifer Cookbook, which is 20 pages,
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`including 11 recipes.
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`Defendant published her cookbook, Teff Love: Adventures in Vegan Ethiopian Cooking,
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`on January 15, 2015, under the pen name “Kittee Berns” (the “Berns Cookbook”). The Berns
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`Cookbook contains more than 185 pages, including over 140 recipes, commentary, instructions,
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`ingredient descriptions, and shopping guides. The Berns Work also includes black-and-white,
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`color, and monochrome illustrations.
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`In July 2016, plaintiff published a second edition of his 2007 Schleifer Cookbook (the
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`“2016 Schleifer Cookbook”). The second edition bears the same name as the 2007 Schleifer
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`Cookbook and is itself identified as the “2nd Edition” of the 2007 Schleifer Cookbook. The
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`ISBN-13 is different for the 2016 Schleifer Cookbook, as well: ISBN-13 9781535215299. The
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`2016 Schleifer Cookbook includes 82 pages of content, including 12 recipes and several black-
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`and-white photographs. Moreover, in terms of finish, the 2016 Schleifer Cookbook looks more
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`professionally composed, whereas the 2007 Schleifer Cookbook seems more amateur in
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`comparison, as it appears to have been composed with a word processing program and bound
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`with a plastic spiral.
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`The 2007 Schleifer Cookbook bears the Registration Number TX 8-281-274. However, a
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`search of the U.S. Copyright Office’s public search record – which the Court can consider
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`because it is both an exhibit to the amended complaint and an integral element on which
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`plaintiff’s claim rests – indicates that plaintiff registered the 2007 Schleifer Cookbook at TX 8-
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`Case 1:17-cv-01649-BMC Document 26 Filed 07/19/17 Page 3 of 14 PageID #: 534
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`281-274 on December 28, 2016. On January 30, 2017, plaintiff supplemented his Registration
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`and registered the 2016 Schleifer Cookbook at TX 6-250-394.
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`Notwithstanding the differences in pages and number of recipes, plaintiff alleges that
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`“there are no substantive differences between” the 2007 Schleifer Cookbook and the 2016
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`Schleifer Cookbook, and that “[a]ll infringements and copied texts can be found in both the 2007
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`and 2016 edition of the books.” Plaintiff argues that both the 2007 and 2016 Cookbooks “are
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`identical in content notwithstanding certain grammatical upgrades, a preface, and the addition of
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`colored photos.” Moreover, plaintiff alleges that, based on defendant’s responses to interview
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`questions in which she stated that she read a lot of recipes and books as part of her effort to write
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`her own cookbook, one can infer that defendant was familiar with plaintiff’s cookbook.
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`DISCUSSION
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`I. Motion to Dismiss Copyright Infringment
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`A. Standard of Review
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`In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court
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`should “draw all reasonable inferences in Plaintiff[’s] favor, assume all well-pleaded factual
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`allegations to be true, and determine whether they plausibly give rise to an entitlement to relief.”
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`Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks
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`omitted). A court is not, however, “bound to accept conclusory allegations or legal conclusions
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`masquerading as factual conclusions.” Id. Thus, “threadbare recitals of the elements of a cause
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`of action[,] supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556
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`U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). Although “legal
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`conclusions can provide the framework of a complaint, they must be supported by factual
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`allegations.” Id. at 679. Determining whether a complaint plausibly states a claim for relief is “a
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`Case 1:17-cv-01649-BMC Document 26 Filed 07/19/17 Page 4 of 14 PageID #: 535
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`context specific task that requires the reviewing court to draw on its judicial experience and
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`common sense.” Id.
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`“In addition to the text of the complaint, the Court may consider documents attached as
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`exhibits, incorporated by reference, or that are ‘integral’ to the complaint.” McDonald v. West,
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`138 F. Supp. 3d 448, 453 (S.D.N.Y. 2015) (citing DiFolco v. MSNBC Cable LLC, 622 F.3d 104,
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`111 (2d Cir. 2010)). In a copyright infringement action, “the works themselves supersede and
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`control [any] contrary descriptions” that the parties offer in the pleadings. Peter F. Gaito
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`Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010).
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`B. Copyright Infringement
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`To state a claim for copyright infringement, a plaintiff must allege “(1) ownership of a
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`valid copyright and (2) copying of constituent elements of the work that are original.” Feist
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`Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). “In the absence of direct
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`evidence, copying is proven by showing (a) that the defendant had access to the copyrighted
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`work and (b) the substantial similarity of protectible material in the two works.” Williams v.
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`Crichton, 84 F.3d 581, 587 (2d Cir. 1996) (internal quotation marks omitted); see also Walker v.
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`Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir. 1986) (“[c]opying may be inferred where a
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`plaintiff establishes that the defendant had access to the copyrighted work and that substantial
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`similarities exist as to protectible material in the two works.”).
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`Not all copying constitutes copyright infringement, and as the Second Circuit has
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`repeatedly stated, “[i]t is an axiom of copyright law that the protection granted a copyrightable
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`work extends only to the particular expression of an idea and never to the idea itself.” Reyher v.
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`Children’s Television Workshop, 533 F.2d 87, 90 (2d Cir. 1976). Furthermore, “[s]imply
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`because a work is copyrighted does not mean every element of that work is protected.” Boisson
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`4
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`Case 1:17-cv-01649-BMC Document 26 Filed 07/19/17 Page 5 of 14 PageID #: 536
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`v. Banian, Ltd, 273 F.3d 262, 268 (2d Cir. 2001). Therefore, dismissal is appropriate where the
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`similarity concerns only non-copyrightable elements of plaintiff’s work or if no reasonable
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`factfinder could find the works substantially similar.
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`District courts may evaluate substantial similarity at the pleadings stage on a motion to
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`dismiss. See Peter F. Gaito Architecture, 602 F.3d at 64 (In ruling on a motion to dismiss, “no
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`discovery or fact-finding is typically necessary, because what is required is only a visual
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`comparison of the works.” (internal quotation marks omitted)); Effie Film, LLC v. Pomerance,
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`909 F. Supp. 2d 273, 290-91 (S.D.N.Y. 2012) (“Although substantial similarity analysis often
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`presents questions of fact, where the court has before it all that is necessary to make a
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`comparison of the works in question, it may rule on substantial similarity as a matter of law on a
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`Rule 12(b)(6) motion to dismiss.” (internal quotation marks omitted)).
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`“The standard test for substantial similarity between two items is whether an ordinary
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`observer, unless he set out to detect the disparities, would be disposed to overlook them, and
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`regard [the] aesthetic appeal as the same.” Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 111
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`(2d Cir. 2001) (alteration in original and internal quotation marks omitted). However, “a more
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`refined analysis is required where [the allegedly copied] work is not wholly original, but rather
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`incorporates elements from the public domain,” in which case a court must look for “substantial
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`similarity between those elements, and only those elements, that provide copyrightability to the
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`allegedly infringed [work].” Boisson, 273 F.3d at 272 (internal quotation marks omitted). The
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`Second Circuit has called this latter test the “more discerning” test, and in applying it, the Circuit
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`has cautioned courts “not to dissect the works at issue into separate components and compare
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`only the copyrightable elements,” but rather to be “guided by comparing the total concept and
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`feel of the contested works.” Id. (internal quotation marks omitted).
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`Case 1:17-cv-01649-BMC Document 26 Filed 07/19/17 Page 6 of 14 PageID #: 537
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`More specifically, a court must “examine the similarities in such aspects as the total
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`concept and feel, theme, characters, plot, sequence, pace, and setting of the” works, while
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`“tak[ing] care to inquire only whether the protectible elements, standing alone, are substantially
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`similar.” Williams, 84 F.3d at 588 (internal quotation marks omitted). “[T]he total-concept-and-
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`feel locution functions as a reminder that, while the infringement analysis must begin by
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`dissecting the copyrighted work into its component parts in order to clarify precisely what is not
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`original, infringement analysis is not simply a matter of ascertaining similarity between
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`components viewed in isolation.” Tufenkian Import/Export Ventures, Inc. v. Einstein Moomjy,
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`Inc., 338 F.3d 127, 134 (2d Cir. 2003).
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`Although there is an issue as to when plaintiff secured his copyright registration (as it
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`appears that his copyright postdates the publication of the Berns Cookbook), even if the Court
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`accepts that he had a valid copyright in 2007, plaintiff has failed to establish substantial
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`similarities between the 2007 Schleifer Cookbook and the Berns Cookbook. The below table
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`compares the infringing material that plaintiff identifies in his Amended Complaint and the
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`corresponding content in the Berns Cookbook (in blue italics).1
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` 1
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` In plaintiff’s original complaint, he included ten instances of infringement, but five of them were actually
`comparisons from the 2016 Schleifer Cookbook. Because the Berns Cookbook was published before the 2016
`Schleifer Cookbook, plaintiff deleted those allegations from his amended complaint. However, he did not do a
`complete job – one of the remaining examples he includes in the amended complaint actually appears nowhere in
`either the 2007 Schleifer Cookbook or the 2007 Amazon Schleifer Cookbook. Thus, this table only includes the
`allegations in the amended complaint with some actual 2007 Cookbook bases.
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`6
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`Case 1:17-cv-01649-BMC Document 26 Filed 07/19/17 Page 7 of 14 PageID #: 538
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`Alleged Infringements
`from the Schleifer Cookbooks
`“Using our spongy, crepe-like injera bread. . .
`soaked through with the flavors and colors of
`the food.”
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`2007 Schleifer Cookbook at 3; 2007 Amazon
`Schleifer Cookbook at 6; 2016 Schleifer
`Cookbook at 7.
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`“Tibs. . .this is a vegetarian spin on a popular
`meat dish. . . . Tibs is similar to a saute, stir-
`fry, or sizzle.”
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`2007 Amazon Schleifer Cookbook at 20;
`2016 Schleifer Cookbook at 33.
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`“Berbere, a complex spice blend found in the
`hotter traditional Ethiopian dishes….”
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`2007 Schleifer Cookbook at 7; 2007 Amazon
`Schleifer Cookbook at 1.
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`“It is traditional for an Ethiopian hostess to
`roll up some of the meal in a piece of Injera
`and place the first bite in the guest’s mouth.”
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`2007 Schleifer Cookbook at 16; 2007
`Amazon Schleifer Cookbook at 10; 2016
`Schleifer Cookbook at 15.
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`Berns Cookbook
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`“Injera, a spongy, tangy . . . crepe-like bread,
`that soaks up the yummy sauces from the
`food that rests upon it.”
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`Berns Cookbook at 1.
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`“[T]ibs are traditionally meat-filled stir-fry
`dishes.”
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`Berns Cookbook at 153.
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`“[B]erbere is a spice blend made from
`moderately hot red peppers and a slew of
`other spices.”
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`Berns Cookbook at 21.
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`“Ethiopian tradition of wrapping. . .foods in
`injera and popping it into the mouths of
`special friends.”
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`Berns Cookbook at 178.
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`These few common words provide no basis for a copyright infringement claim. First, the
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`factual content describing particular Ethiopian foods, ingredients, or culinary traditions is not
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`protectable as a matter of law. See 17 U.S.C. § 102(b) (“In no case does copyright protection for
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`an original work of authorship extend to any idea, procedure, process, system, method of
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`operation, concept, principle, or discovery, regardless of the form in which it is described,
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`explained, illustrated, or embodied in such work.”); Sparaco v. Lawler, Matusky, Skelly,
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`Engineers LLP, 303 F.3d 460, 466 (2d Cir. 2002) (noting that “historical, scientific, or factual
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`information belongs in the public domain”).
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`7
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`Case 1:17-cv-01649-BMC Document 26 Filed 07/19/17 Page 8 of 14 PageID #: 539
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`To the extent the two works have general similarities – including the fact that both are
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`about vegetarian or vegan Ethiopian cuisine, the inclusion of illustrations of prepared dishes, and
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`descriptions of foods as spicy, spongy, or the like – these elements simply do not amount to a
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`claim for copyright violation. Instead, they are “scènes à faire,” or “unprotectible elements that
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`follow naturally from [the] work’s theme rather than from [the] author’s creativity.”
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`MyWebGrocer, LLC v. Hometown Info, Inc., 375 F.3d 190, 194 (2d Cir. 2004).
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`Plaintiff’s alleged similarities, with respect to the individual elements outlined above, are
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`insufficient to sustain his contention that the cookbooks are substantially similar within the
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`meaning of copyright law. Just as the court found in LaPine v. Seinfeld, No. 08 CIV. 128, 2009
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`WL 2902584, at *9 (S.D.N.Y. Sept. 10, 2009), aff’d, 375 F. App’x 81 (2d Cir. 2010), “[t]he
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`similarities identified by Plaintiffs are the result of the similar medium of expression used
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`(cookbooks) or of the similar subject matter that both cookbooks address [Ethiopian food].
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`Stock elements resulting from the initial choice of subject matter are not protectible.” The
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`Seinfeld court further observed that “when a cookbook is based on a particular idea or theme
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`(whether it be vegetarian cooking, grilling, or desserts), the individual recipes in that book are
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`certain to share that common theme and will likely share certain similarities with recipes in other
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`cookbooks based on the same idea.” Id.
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`Moreover, even the most belabored analysis of plaintiff’s allegations shows that his
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`complaint rests on scattered words and short phrases, neither of which are protectable. See
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`McDonald v. West, 138 F. Supp. 3d 448, 454 (S.D.N.Y. 2015), aff’d, 669 F. App’x 59 (2d Cir.
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`2016) (“Words and short phrases . . . rarely if ever exhibit sufficient originality to warrant
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`copyright protection”). I thus reject plaintiff’s argument that his content is “original expression
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`to engage the mind as to the flavors, textures, methods, and practice of the art of Ethiopian
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`8
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`Case 1:17-cv-01649-BMC Document 26 Filed 07/19/17 Page 9 of 14 PageID #: 540
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`cuisine.” His cookbook is no such thing. His attempt to claim infringement based on scattered
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`phrases necessary to explain the common theme of vegetarian or vegan Ethiopian cuisine fails.
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`As to plaintiff’s generic assertion of substantial similarities, “numerous differences tend
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`to undercut substantial similarity.” Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905, 913
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`(2d Cir. 1980); see also id. (“As a matter of logic as well as law, the more numerous the
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`differences between two works the less likely it is that they will create the same aesthetic impact
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`so that one will appear to have been appropriated from the other.”). Although the “compilation
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`of non-protectible facts is copyrightable if it features an original selection or arrangement of
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`facts, so that the selection or arrangement possesses at least some minimal degree of creativity,”
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`that is not the case here. MyWebGrocer, 375 F.3d at 193 (internal quotation marks and citation
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`omitted). Even if the Court were to consider the longer 2007 Amazon Schleifer Cookbook in
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`conducting its comparison, the 2007 Amazon Schleifer Cookbook and Berns Cookbook are
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`substantially dissimilar. The Berns Cookbook contains more than 185 pages of content,
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`including cultural history, ingredients lists, shopping lists, over 140 recipes, and over two-dozen
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`pages of photographs and illustrations. In contrast, the 2007 Amazon Schleifer Cookbook
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`contains only 46 numbered pages, including 12 recipes, six pages of commentary, a three-page
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`interview, and nine pages of black-and-white photographs. The “total concept and feel” of these
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`two works is distinct, and the abstract similarities that “follow naturally” from the works’
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`common theme of vegetarian Ethiopian cooking are not protectable. Lapine v. Seinfeld, 375 F.
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`App’x 81, 83 (2d Cir. 2010). Indeed, the 2007 Amazon Schleifer “Cookbook” is hardly even a
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`book; it is closer to a pamphlet.
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`Having considered the cookbooks at issue, both the alleged similarities and the total
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`concept and feel, neither the total look and feel of the two works, nor the points of similarity
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`9
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`identified by plaintiff, are sufficient, as a matter of law, to support a finding of copyright
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`infringement. Put differently, no reasonable factfinder could conclude that an ordinary lay
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`observer would be disposed to overlook the disparities between the works and find them, in their
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`specifics or in their totality, to have the same aesthetic appeal. See Boisson, 273 F.3d at 272.2
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`II. The Assessment of Attorney’s Fees & Costs Against Plaintiff and His Counsel Under
`the Copyright Act & Pursuant to the Court’s Inherent Authority
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`A. Legal Standard
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`Under the Copyright Act, a “court in its discretion may allow the recovery of full
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`costs . . . [and] also award a reasonable attorney’s fee to the prevailing party” in a civil action
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`for copyright infringement. 17 U.S.C. § 505. Important here is that costs and attorney’s fees are
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`equally available to either a prevailing plaintiff or prevailing defendant. See Fogerty v. Fantasy,
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`Inc., 510 U.S. 517, 534 (1994). An award of attorney’s fees and costs is not automatic; rather,
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`the district court has the sole and broad discretion to determine whether such assessment would
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`be fair. See Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1011 (2d Cir. 1995). “When
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`determining whether to award attorney’s fees, district courts may consider such factors as (1) the
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`frivolousness of the non-prevailing party’s claims or defenses; (2) the party’s motivation;
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`(3) whether the claims or defenses were objectively unreasonable; and (4) compensation and
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`deterrence.” Bryant v. Media Right Productions, Inc., 603 F.3d 135, 144 (2d Cir. 2010). “The
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`third factor – objective unreasonableness – should be given substantial weight.” Id.
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` 2
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` The Court need not consider plaintiff’s claim for unjust enrichment, as it is well-settled that a claim for unjust
`enrichment is preempted by the Copyright Act. See Briarpatch Ltd., L.P v. Phoenix Pictures, Inc., 373 F.3d 296,
`305, 306-07 (2d Cir. 2004); Affiliated Records Inc. v. Taylor, 09 Civ. 9938, 2012 WL 1675589, at *5 (S.D.N.Y.
`May 14, 2012).
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`10
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`Additionally, as the Supreme Court recently noted, § 505 costs and fees should be
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`awarded in such a way that “encourages parties with strong legal positions to stand on their
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`rights and deters those with weak ones from proceeding with litigation.” Kirtsaeng v. John Wiley
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`& Sons, Inc., 136 S. Ct. 1979, 1986 (2016). Accordingly, the Court should “giv[e] substantial
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`weight to the reasonableness of a losing party’s position.” Id. at 1983.
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`The Court also has the inherent power to impose monetary sanctions on a litigant or his
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`counsel, including the assessment of attorney’s fees and costs. See Chambers v. NASCO, Inc.,
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`501 U.S. 32, 44-45 (1991). Under this inherent power, “a court may assess attorney’s fees when
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`a party [or lawyer] has ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons.’”
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`Id. at 45-46 (internal citation omitted).
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`B. Discussion
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`Here, an award of costs and fees under the Copyright Act is warranted because the factual
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`and legal contentions plaintiff argued were either frivolous or objectively unreasonable, and
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`there is a need in this case for both compensation and deterrence. First, the unreasonable nature
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`of plaintiff’s claims in this case is manifest. It was objectively unreasonable for plaintiff to have
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`believed that a colorable copyright action exists based on four examples of similar language in
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`what amounts to non-protectable factual descriptions of Ethiopian cuisine and culinary traditions.
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`The unreasonableness of plaintiff’s position is supported by the fact that plaintiff’s opposition to
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`the motion to dismiss contains a mere three-and-one-half pages arguing that his copyright claim
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`was actionable. The vast majority of those pages is the plain recitation of the legal standards,
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`which is to say that plaintiff could not point to any cases that would support his action because
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`there are none. Put differently, plaintiff’s position was so far afield that his attorneys could not
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`even defend against the motion to dismiss.
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`This objective unreasonableness is compounded by the unreasonable manner in which
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`this case has been litigated, from plaintiff’s failure to properly investigate defendant’s
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`publisher’s letter explaining why his claim lacked merit and the legal arguments, to his
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`infringement allegations regarding content not actually contained in the 2007 Schleifer
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`Cookbook, but rather contained in the 2016 Schleifer Cookbook, to the inclusion of unsupported
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`infringement allegations in the amended complaint that nowhere appear in the 2007 Schleifer
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`Cookbook, to the bald assertion that the 20-page (or 46-page) 2007 Schleifer Cookbook is
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`“identical” to the 82-page 2016 Schleifer Cookbook. These allegations greatly exceed the
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`bounds of fair argument.
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`Plaintiff argues that he “wholeheartedly believes this lawsuit has merit and is not made in
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`bad faith,” but even if true, that is immaterial. The standard is “objective reasonableness,” not
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`subjective reasonableness. More fundamentally, a lay person’s wholehearted beliefs do not save
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`him or his attorneys from having to pay fees; it was incumbent on his attorneys to explain that
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`his copyright action was frivolous, and their failure to do that (and several other failings) leads
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`into why the Court will exercise its inherent authority to sanction plaintiff’s lawyers for
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`attorney’s fees and costs.
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`No reasonable copyright attorney, or even an attorney who had devoted 20 minutes to
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`legal research, would have filed this complaint. If plaintiff’s attorneys did not do the requisite
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`research when filing the complaint, surely they should have recognized the absence of merit
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`when preparing the opposition to the motion to dismiss. Despite seeing no supporting case law,
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`plaintiff’s attorneys forged onward.
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`Worse than that, I cannot comprehend how plaintiff sought statutory damages when he
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`had no copyright registration at the time that defendant published her book. It is axiomatic that
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`12
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`Case 1:17-cv-01649-BMC Document 26 Filed 07/19/17 Page 13 of 14 PageID #: 544
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`statutory damages are only permitted when a plaintiff has a valid registration at the time of
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`infringement, Baker v. Urban Outfitters, Inc., 431 F. Supp. 2d 351, 363 (S.D.N.Y. 2006), aff’d,
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`249 F. App’x 845 (2d Cir. 2007), and here, plaintiff did not register his 2007 cookbook until
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`eight months ago. Such steadfast adherence to an untenable legal position and the submission of
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`false allegations and far-fetched arguments to this Court rise to a level of bad faith that compels
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`the imposition of attorney’s fees on both plaintiff and his attorneys.
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`Here, the award of costs and fees to defendant furthers the goals that the Supreme Court
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`and courts in this Circuit have repeatedly emphasized in copyright cases, i.e., compensation and
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`deterrence. When plaintiff filed this frivolous action, defendant had no choice but to engage
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`counsel and expend resources to litigate this case. Under these circumstances, the policies
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`behind the Copyright Act would be violated if this Court required defendant to bear her own
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`costs and fees. See Fogerty, 510 U.S. at 529 (“It is increasingly recognized that the person who
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`forces another to engage counsel to vindicate, or defend, a right should bear the expense of such
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`engagement and not his successful opponent . . . .” (internal quotation marks omitted)).
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`As to deterrence, an award of costs and fees is crucial here, so as to deter this plaintiff,
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`and other similarly situated plaintiffs, from bringing frivolous and objectively unreasonable
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`claims. There is also a need to deter attorneys who fail to comply with their obligations to the
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`Court to research and put forth good-faith claims and defenses. Therefore, the Court concludes,
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`in the exercise of its discretion, that an award of costs and attorney’s fees to defendant would
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`serve the purposes of the Copyright Act, and that such an award is necessary here.
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`The same reasons animate the Court’s assessment of sanctions on plaintiff’s attorneys.
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`Their conduct in this case can only be described as bad faith. Plaintiff’s attorneys failed to
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`perform a pre-litigation investigation and then failed to withdraw the claims when, on drafting
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`13
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`Case 1:17-cv-01649-BMC Document 26 Filed 07/19/17 Page 14 of 14 PageID #: 545
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`the opposition to the motion to dismiss, they found no cases supporting their positions. Not only
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`could they not affirmatively support their case, but they could not even address the majority of
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`defendant’s substantive arguments. Plaintiff’s attorneys seemed to have taken the position that
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`they were going to roll the dice even though nothing in law or fact supported their filing or
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`prosecuting this suit.
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`Given the foregoing, it is appropriate that both plaintiff and his attorneys be jointly and
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`severally liable for the costs and fees, which the Court will assess after submission of billing
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`records by defendant.
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`Accordingly, defendant is ORDERED to submit, within 14 days of the date of this
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`Memorandum Decision and Order, her itemization of costs and her contemporaneous time and
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`billing records for defending this action. Plaintiff has 14 days from the filing of those records to
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`oppose the reasonableness of the amount of defendant’s fees and costs, and defendant has seven
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`days thereafter to reply.
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`The Court need not reach defendant’s argument regarding additional statutory sanctions.
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`The shifting of costs and attorney’s fees to plaintiff and his attorneys is sufficient to effect both
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`specific and general deterrence and compensate plaintiff for having to defend this action.
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`Defendant’s motion to dismiss and for attorney’s fees and costs is granted.
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`CONCLUSION
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`SO ORDERED.
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`Dated: Brooklyn, New York
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`July 19, 2017
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`14
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`U.S.D.J.
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