Case 1:22-cv-01254-PKC Document 108 Filed 04/24/24 Page 1 of 10
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`ESTHER WILDER,
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`Plaintiff,
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`-against-
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`SARAH HOILAND,
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`Defendant.
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`CASTEL, U.S.D.J.
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`OPINION AND ORDER
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`22-cv-1254 (PKC)
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`Plaintiff Esther Wilder and defendant Sarah Hoiland filed cross-motions for
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`summary judgment in this copyright infringement case. In an Opinion and Order of February 1,
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`2024 (ECF 85 (the “Order”)), this Court granted summary judgment to Hoiland, concluding that
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`she had made a fair use of Wilder’s work. The Court also concluded that there were genuine
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`issues of material fact about Wilder’s ownership of the copyright that precluded granting her
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`motion for summary judgment on her claim of copyright infringement. The Clerk of Court
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`entered judgment accordingly on February 2, 2024. (ECF 86.)
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`On February 13, 2024, Hoiland submitted a request to the Court for a two-week
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`extension of time to file her motion for attorneys’ fees and costs under 17 U.S.C. § 504 and Rule
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`54(d). (ECF 87.) Hoiland requested the adjournment of this deadline, consented to by Wilder,
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`because they were “in discussions to determine whether this matter can be settled without further
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`Court proceedings, and the parties believe that a short extension of the current deadline will help
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`facilitate those discussions.” (Id.) The Court granted this request. (ECF 88.) On March 1,
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`Case 1:22-cv-01254-PKC Document 108 Filed 04/24/24 Page 2 of 10
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`Wilder, represented by new counsel, filed a motion asking the Court to alter or amend its
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`judgment pursuant to Rule 59(e), Fed. R. Civ. P. (ECF 94.) Hoiland also filed a motion seeking
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`an award of attorneys’ fees on March 1. (ECF 91.) After Wilder filed her motion under Rule
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`59(e), Hoiland sought to “withdraw” her motion for attorneys’ fees because it would be
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`“rendered premature” by the Rule 59(e) motion. (ECF 101.) Wilder filed opposition briefing to
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`Hoiland’s attorneys’ fees motion, to which Hoiland replied. (ECF 98, 99, 100, 103, 104.)
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`For the reasons set forth below, Wilder’s motion pursuant to Rule 59(e) will be
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`denied. Hoiland’s motion for attorneys’ fees will also be denied.
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`I.
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`WILDER’S MOTION TO ALTER OR AMEND THE JUDGMENT
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`The standards for motion for reconsideration under Local Rule 6.3 and altering or
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`amending a judgment under Rule 59(e), Fed. R. Civ. P, are “identical.” Burke v. Solomon
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`Acosta & FASCore/Great West & MTA/NYC Transit Authority, 2009 WL 10696111, at *1
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`(S.D.N.Y. Apr. 23, 2009) (Castel, J.), affirmed sub nom. Burke v. Acosta, 377 F. App’x 52 (2d
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`Cir. 2010) (summary order) (citation omitted). Motions to alter or amend a judgment are held to
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`strict standards, “and reconsideration will generally be denied unless the moving party can point
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`to controlling decisions or data that the court overlooked—matters, in other words, that might
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`reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX
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`Transportation, Inc., 70 F.3d 255, 257 (2d Cir. 1995) (citations omitted). Motions to alter or
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`amend a judgment are not vehicles for the moving party to relitigate an issue the Court has
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`already decided. Cordero v. Astrue, 574 F. Supp. 2d 373, 380 (S.D.N.Y. 2008) (Marrero, J.); see
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`also Shrader, 70 F.3d at 257.
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`Case 1:22-cv-01254-PKC Document 108 Filed 04/24/24 Page 3 of 10
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`A motion for reconsideration may be granted based upon “an intervening change
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`of controlling law, the availability of new evidence, or the need to correct a clear error or prevent
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`manifest injustice.” Virgin Atlantic Airways, Ltd. v. National Mediation Board, 956 F.2d 1245,
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`1255 (2d Cir. 1992) (internal quotation marks and citation omitted); see also NEM Re
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`Receivables, LLC v. Fortress Re, Inc., 187 F. Supp. 3d 390, 396-97 (S.D.N.Y. 2016) (Marrero,
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`J.) (analyzing a motion for reconsideration under Rule 59(e), Fed. R. Civ. P., and Local Rule 6.3
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`under these three grounds). “Rule 59(e) permits a court to alter or amend a judgment, but it ‘may
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`not be used to relitigate old matters, or to raise arguments or present evidence that could have
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`been raised prior to the entry of judgment.’” Exxon Shipping Company v. Baker, 554 U.S. 471,
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`486 n.5 (2008) (quoting 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and
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`Procedure § 2810.1 (2d ed. 1995)). See also Analytical Surveys, Inc. v. Tonga Partners, L.P.,
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`684 F.3d 36, 52 (2d Cir. 2012), as amended (July 13, 2012) (citations omitted) (“It is well-settled
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`that Rule 59 is not a vehicle for relitigating old issues, presenting the case under new theories,
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`securing a rehearing on the merits, or otherwise taking a ‘second bite at the apple’. . . .”).
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`Conceding that she is not offering any intervening change in law or newly
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`discovered evidence, Wilder argues that the Court’s judgment should be amended based on
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`“clear error” and “manifest injustice.” (ECF 95 at 7.) She urges the Court to reverse its grant of
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`summary judgment to Hoiland on her fair use affirmative defense and to instead grant summary
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`judgment in her favor on her copyright infringement claim. (Id.) For the reasons explained
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`below, the Court declines to amend or alter its judgment. Wilder’s motion will be denied.
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`Case 1:22-cv-01254-PKC Document 108 Filed 04/24/24 Page 4 of 10
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`A. Hoiland’s Use Was a Fair Use
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`Wilder’s main contention in her Rule 59(e) motion is that Hoiland’s use of the
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`copyrighted text at issue (the “Unit 7H Text”) was not transformative and that the Court
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`therefore should not have concluded that her use was fair. (Id. at 8-17.) Wilder also argues that
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`the Court “misapprehended” the context of Hoiland’s use and asserts that the written slides
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`themselves, rather than the presentation Hoiland gave using the written slides, were “all that
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`mattered” to the fair use analysis. (Id. at 1, 9.)
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`But whether a use is transformative is not dispositive to the fair use analysis.
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`Rather, it is an element of the analysis under the first factor, “the purpose and character of the
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`use.” See Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 538
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`(2023) (explaining that a “use’s transformativeness may outweigh its commercial character” as
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`part of the first factor analysis); Swatch Group Management Services Ltd. v. Bloomberg L.P.,
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`756 F.3d 73, 84 (2d Cir. 2014) (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579
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`(1994)) (“While a transformative use generally is more likely to qualify as fair use,
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`‘transformative use is not absolutely necessary for a finding of fair use.’”); Authors Guild, Inc. v.
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`HathiTrust, 755 F.3d 87, 102 (2d Cir. 2014) (concluding that “providing access to the print-
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`disabled is still a valid purpose under Factor One even though it is not transformative” and
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`ultimately concluding use was fair).
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`Wilder herself concedes that transformativeness is not dispositive when she cites
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`statistics about how often courts finding transformative uses “also held that the uses were fair.”
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`(ECF 105 at 7 (emphasis added) (citation omitted).) Even if Hoiland’s use was not
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`transformative, then, Wilder’s confidence that the grant of summary judgment to Hoiland was
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`error “as a matter of law” is misplaced. (ECF 95 at 17; see also id. (“Because Hoiland’s Work
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`Case 1:22-cv-01254-PKC Document 108 Filed 04/24/24 Page 5 of 10
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`Was Not Transformative, the Work Could Not Have Been a Fair Use.”).) As Hoiland notes, the
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`fair use standard is “flexible,” Warhol, 598 U.S. at 527, and other factors in the fair use analysis
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`also weighed in her favor, not just the “transformative” element. (ECF 97 at 7-8.) Under the
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`first factor, the Court also concluded that Hoiland’s non-commercial, educational use weighed in
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`her favor (ECF 85 at 29, 35); the second factor, the nonfictional nature of the work, also weighed
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`in favor of fair use (which Wilder essentially conceded) (id. at 36); and the fourth factor weighed
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`in Hoiland’s favor as well (id. at 40-44).1 And although Wilder argues that the Court committed
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`error by placing the burden on Wilder to show market harm under the fourth factor rather than on
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`Hoiland, who had the burden of proving her affirmative defense, Wilder misunderstands the
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`Court’s opinion. (ECF 105 at 8 n.4.)) The Second Circuit has granted summary judgment in
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`favor of defendants based on “essentially unrebutted” evidence in the record that showed the
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`plaintiffs’ claimed financial harm was speculative or unlikely, as was the case here. HathiTrust,
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`755 F.3d at 100–01; see also Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1264 (2d Cir. 1986)
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`(finding fair use where plaintiff could not “credibly argue that the use of the quotations has
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`harmed potential markets for her work” because she was “unable to point to a single piece of
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`evidence portending future harm”).
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`But the Court also declines to alter its conclusion that Hoiland’s use was
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`transformative. Even if the Court accepted Wilder’s argument that it should have considered the
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`written presentation alone, divorced from all reference to the oral component of Hoiland’s
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`1 Wilder is also not correct that Campbell “abrogated” the significance of the fourth factor. (ECF 105 at 7 n.3
`(quoting Campbell, 510 U.S. at 590 n.21).) See, e.g., Authors Guild v. Google, 804 F.3d 202, 223 (2d Cir. 2015)
`(citing Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 566 (1985)) (“Because copyright is a
`commercial doctrine whose objective is to stimulate creativity among potential authors by enabling them to earn
`money from their creations, the fourth factor is of great importance in making a fair use assessment.”); Swatch, 756
`F.3d at 90 (quoting Harper & Row, 471 U.S. at 566) (observing that “the Supreme Court described [the fourth]
`factor as ‘undoubtedly the single most important element of fair use’”); Yang v. Mic Network Inc., 2022 WL
`906513, at *1 (2d Cir. Mar. 29, 2022) (citations omitted) (summary order) (“The Supreme Court has stressed the
`importance of the first factor . . . and the fourth factor” of the fair use analysis).
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`Case 1:22-cv-01254-PKC Document 108 Filed 04/24/24 Page 6 of 10
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`presentation, its conclusion would not change. The Court did, in fact, consider the written slides
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`themselves in determining that Hoiland’s use of the text was transformative; the Order spent
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`several pages discussing the specific changes Hoiland made to the Unit 7H Text and the other
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`materials she included on the written slides and why those changes and inclusions made the
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`written slides, as a whole, a transformative use of the Unit 7H Text. (ECF 85 at 32-35.) Wilder
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`urges the Court to look at the five slides that incorporate the Unit 7H Text, but those slides
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`cannot be considered in isolation—they must be considered in the context of the entire set of
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`slides and Hoiland’s purpose in creating those slides, which is the context in which the Court
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`discussed the verbal portions of the presentation. (ECF 95 at 5-6, 12-17; ECF 105 at 4.)2
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`Finally, Wilder also dedicates only one sentence of her initial and reply briefs to
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`her claim that the Court has committed manifest injustice, “respectfully tender[ing]” that the
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`“errors” in the Court’s opinion “will impose manifest injustice not just upon Wilder but upon the
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`legions of academics who rely on this Court—the North Star of copyright law in this Nation—to
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`protect their work from misappropriation.” (ECF 95 at 7.) Wilder provides no further support
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`for this assertion, and it fails to meet the “manifest injustice” standard, which “is, by definition,
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`‘deferential to district courts and provide[s] relief only in the proverbial “rare case.”’” Corsair
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`Special Situations Fund, L.P. v. National Resources, 595 F. App’x 40, 44 (2d Cir. 2014)
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`(summary order) (citation omitted). See, e.g., Hemstreet v. Greiner, 378 F.3d 265, 268-69 (2d
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`Cir. 2004) (sua sponte granting reconsideration to prevent injustice upon introduction of new
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`evidence that “call[ed] into question” the record upon which the court originally affirmed a grant
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`2 And to the extent Wilder argues that publication and downloading of the slides constituted infringement, fair use is
`an affirmative defense that exempts Hoiland from liability for all of these alleged infringing uses. See Campbell,
`510 U.S. at 590. The Court also did not overlook the publication of the presentation online for download by
`attendees in its Order. (See, e.g., ECF 85 at 6, 16, 43, 44.)
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`Case 1:22-cv-01254-PKC Document 108 Filed 04/24/24 Page 7 of 10
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`of a habeas petition); Anwar v. Fairfield Greenwich Ltd., 745 F. Supp. 2d 379, 383 (S.D.N.Y.
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`2010) (Marrero, J.) (granting reconsideration to prevent manifest injustice where “technicality”
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`and unclear briefing caused court to dismiss negligence claims that were properly pled). “[A]
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`judgment in a civil case does not constitute ‘manifest injustice’ where the movant’s arguments
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`for relief ‘were available to the [party] below and [the party] proffer[s] no reason for [its] failure
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`to raise the arguments.’” Corsair, 595 F. App’x at 44 (quoting In re Johns–Manville
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`Corporation, 759 F.3d 206, 219 (2d Cir. 2014)).
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`Because Wilder has not demonstrated clear error or manifest injustice, the Court
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`denies her motion for reconsideration of the Court’s grant of summary judgment to Hoiland.
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`B. Ownership of the Copyright
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`Wilder also seeks to have this Court grant summary judgment in her favor on her
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`claim of copyright infringement instead. The Court denies this request. Because the Court
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`declines to reconsider its decision granting summary judgment to Hoiland on her fair use, the
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`Court need not address Wilder’s motion for it to reconsider granting summary judgment to
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`Wilder.
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`Wilder’s motion under Rule 59(e) is therefore denied.
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`II.
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`HOILAND’S MOTION FOR ATTORNEYS’ FEES
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`Hoiland moves, pursuant to 17 U.S.C. § 505, for an award of attorneys’ fees and
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`costs. The Copyright Act provides, “In any civil action under this title, the court in its discretion
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`may allow the recovery of full costs by or against any party other than the United States or an
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`officer thereof. Except as otherwise provided by this title, the court may also award a reasonable
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`Case 1:22-cv-01254-PKC Document 108 Filed 04/24/24 Page 8 of 10
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`attorney’s fee to the prevailing party as part of the costs.” 17 U.S.C. § 505. The Supreme Court
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`has held that this statute “clearly connotes discretion” to a district court and that there is no
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`“precise rule or formula” for an award of fees in this context. Kirtsaeng v. John Wiley & Sons,
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`Inc., 579 U.S. 197, 202 (2016) (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 533-34 (1994)).
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`The Court has also cited “‘several nonexclusive factors’ to inform a court’s fee-
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`shifting decisions: ‘frivolousness, motivation, objective unreasonableness[,] and the need in
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`particular circumstances to advance considerations of compensation and deterrence.’” Id.
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`(quoting Fogerty, 510 U.S. at 534 n.19). “[O]bjective reasonableness is a factor that should be
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`given substantial weight in determining whether an award of attorneys’ fees is warranted.”
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`Matthew Bender & Company, Inc. v. West Publishing Company, 240 F.3d 116, 122 (2d Cir.
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`2001). In appropriate cases, however, a fee award may be based on other conduct of the non-
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`prevailing party, such as “bad faith in the conduct of the litigation.” Id. at 125.
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`The motivation behind the Copyright Act’s provision for an award of attorneys’
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`fees to the prevailing party is to “encourage the types of lawsuits that promote [the] purposes” of
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`copyright law: “encouraging and rewarding authors’ creations while also enabling others to build
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`on that work.” Kirtsaeng, 579 U.S. at 204 (citing Fogerty, 510 U.S. at 526). The Supreme Court
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`has concluded that “[n]o matter which side wins a case, the court must assess whether the other
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`side’s position was (un)reasonable” in determining whether it is appropriate to award attorneys’
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`fees. Id. at 207. Hoiland urges the Court that an award of attorneys’ fees and costs is
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`appropriate here because Wilder’s copyright claim was “objectively unreasonable,” that Wilder
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`had an “improper” motivation or ulterior motive for bringing the case, and that an award to
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`Hoiland would “serve the goals” of compensation and deterrence. (See, e.g., ECF 92 at 13.)
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`But here, the circumstances that courts within the Second Circuit have found to
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`justify an award of attorneys’ fees are not present. For example, in Baker v. Urban Outfitters,
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`the court granted attorneys’ fees and costs to the defendant where the plaintiff, “rather than
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`pursuing resolution of a fairly minor dispute in good faith . . . filed and maintained this suit in an
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`attempt to extract a significant payment from perceived ‘deep pocketed’ defendants” and made
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`allegations that he had “actual personal knowledge . . . were not true”; the court also found that
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`plaintiff’s claims were unreasonable, the “most obvious example” of which was “the fact that
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`throughout the course of the action, he and his counsel maintained their demand for more than
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`$260,000 in ‘actual damages’ on a claim that was shown fairly promptly not to be worth more
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`than $3,896.” Baker v. Urban Outfitters, Inc., 431 F. Supp. 2d 351, 357 (S.D.N.Y. 2006)
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`(Preska, J.) (citations omitted), affirmed, 249 F. App’x 845 (2d Cir. 2007) (summary order).
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`And in Video-Cinema Films, Inc. v. CNN, Inc., the court also awarded attorneys’
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`fees for the defendant, finding plaintiff’s case objectively unreasonable where “[n]one of the
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`authority cited by Plaintiff . . . stood for the proposition that any use of the copyrighted material
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`must be essential or an actual necessity to qualify as fair use” and where “Plaintiff’s President
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`and sole shareholder . . . devised an elaborate scheme to place himself in a position to sue the
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`Defendants” by “spen[ding] ten hours watching television on the day of [subject of copyrighted
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`film’s] death trying to find as many potential targets of litigation as possible in the event that
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`Plaintiff was able to buy the copyright to the film.” Video-Cinema Films, Inc. v. Cable News
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`Network, Inc., 2003 WL 1701904, at *4 (S.D.N.Y. Mar. 31, 2003) (Jones, J.). See also Mallery
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`v. NBC Universal, Inc., 331 F. App’x 821, 823 (2d Cir. 2009) (summary order) (“The district
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`court properly concluded that Plaintiffs’ claims were objectively unreasonable, ‘as the profound
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`dissimilarity between their works and Heroes was indeed “obvious.”’ Given this conclusion, the
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`district court did not abuse its discretion granting Defendants’ application for attorneys’ fees.”).
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`This case does not present similar facts of bad faith, objective unreasonableness, or other factors
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`warranting the need for an award of fees and costs to Hoiland.
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`The Court will therefore deny Hoiland’s motion.
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`III.
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`CONCLUSION
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`Wilder’s motion to amend or alter the judgment under Rule 59(e) is DENIED.
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`Hoiland’s motion for attorneys’ fees and costs is also DENIED. The Clerk is respectfully
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`requested to terminate the motions (ECF 91, 94) and close the case.
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`SO ORDERED.
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`Dated:
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`New York, New York
`April 24, 2024
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