Broadcast Music, Inc. et al, vs. Cleatz Bar & Grill LLC, et al
Filing
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ORDER granting 18 Plaintiffs' Renewed Motion for Attorneys' Fees. Plaintiffs are AWARDED attorney fees of $6,543.50. The Default Judgment is AMENDED to include attorney fees of $6,543.50. By Judge Robert E. Blackburn on 2/27/13. (kfinn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 12-cv-00321-REB-CBS
BROADCAST MUSIC, INC.,
STONE DIAMOND MUSIC CORP.,
UNIVERSAL-SONGS OF POLYGRAM INTERNATIONAL, INC.,
SONY/ATV SONGS, LLC d/b/a SONY ATV MELODY,
SONY/ATV SONGS, LLC,
THE BERNARD EDWARDS COMPANY, LLC,
CONCORD MUSIC GROUP, INC. d/b/a JONDORA MUSIC,
SONY/ATV SONGS LLC d/b/a SONY ATV TREE PUBLISHING,
VELVET APPLE MUSIC,
EMI BLACKWOOD MUSIC, INC.,
WARNER-TAMERLANE PUBLISHING CORP.,
UNICHAPPELL MUSIC, INC.,
ECAF MUSIC,
SONGS OF UNIVERSAL, INC.,
EMI VIRGIN SONGS, INC. d/b/a EMI LONGITUDE MUSIC,
RONDOR MUSIC INTERNATIONAL, INC. d/b/a IRVING MUSIC, and
HAYROME PUBLISHING,
Plaintiffs,
v.
CLEATZ BAR AND GRILL, LLC d/b/a CLEATZ SPORTS BAR & GRILL, and
LORI E. GARNER, individually,
Defendants.
ORDER GRANTING PLAINTIFFS’ RENEWED MOTION FOR ATTORNEYS’ FEES
Blackburn, J.
The matter before me is Plaintiffs’ Renewed Motion for Attorneys’ Fees [#18]1
filed July 12, 2012. I grant the motion.
1
“[#18]” is an example of the convention I use to refer to the docket number of a particular filing.
In the Order Granting in Part and Denying in Part Plaintiffs’ Motion for
Default Judgment [#16], filed June 25, 2012, I denied without prejudice that portion of
the plaintiffs’ Motion for Default Judgment [#15] requesting attorney fees. In the
renewed motion plaintiffs circumstantiate the reasonableness of attorney fees of
$6,543.50.
Under 17 U.S.C. § 505 – Section 505 of the Copyright Act – Congress provides
for the imposition of costs and attorneys’ fees in favor of the prevailing party:
In any civil action under this title, the court in its discretion may allow the
recovery of full costs by or against any party other than the United States
or an officer thereof. Except as otherwise provided by this title, the court
may also award a reasonable attorney’s fee to the prevailing party as part
of the costs.
17 U.S.C. § 505. “Plaintiffs in copyright actions may be awarded attorneys’ fees simply
by virtue of prevailing in the action: no other precondition need be met, although the fee
awarded must be reasonable.” Girlsongs v. 690 Indus., Inc., 625 F.Supp.2d 1127,
1130-31 (D. Colo. 2008). An award of attorney fees serves to “penalize the losing party,
to deter continuing infringement, to make the prevailing party whole, and to encourage
the proper prosecution of copyright infringements.” Beginner Music v. Tallgrass Broad.,
LLC, 2009 U.S. Dist. LEXIS 71028, *11 (D. Kan. Aug. 12, 2009). Moreover, as I
recognized in my order “‘attorney’s fees are awarded more often as the rule than the
exception’ in cases of this nature.” See Order [#16 at 5] (quoting JMV Music, Inc. v.
Cichran, 2000 WL 1863478, *3 (D. Kan. Nov. 16, 2000). Thus, under 17 U.S.C. § 505,
courts have not been reluctant to allow full recovery by awarding the prevailing party its
reasonable costs and attorney fees. See, e.g., Girlsongs, 625 F.Supp.2d at 1132;
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Milene Music, Inc. v. Gotauco, 551 F. Supp. 1288, 1297-98 (D.R.I. 1982).
Unremarkably, the determination of what constitutes a reasonable attorneys’ fee
lies within the broad discretion of the court. See 17 U.S.C. § 505 (“In any civil action
under this title, the court in its discretion may allow the recovery of full costs by or
against any party…”). However, in determining whether to award fees, the following
non-exclusive factors may guide a court’s exercise of its discretion: “frivolousness,
motivation, objective unreasonableness (both in the factual and in the legal components
of the case) and the need in particular circumstances to advance considerations of
compensation and deterrence.” Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528
F.3d 1258, 1270 n.11 (10th Cir. 2008)(quoting Fogerty v. Fantasy, Inc., 510 U.S. 517,
534 n.19 (1994)).
In light of the objective unreasonableness of defendants’ unexplained and
unexcused failure to answer plaintiffs’ complaint for copyright infringement, the willful
nature of the infringement, and the need to promote and protect considerations of
compensation and deterrence, the operative facts of this case warrant an award of full
attorney fees. See Stockart.com, LLC v. Engle, 2011 U.S. Dist. LEXIS 20470, *45-46
(D. Colo. Feb. 18, 2011).
“In determining appropriate attorneys’ fees, courts generally begin by calculating
the lodestar – the attorneys’ reasonable hourly rate multiplied by the number of hours
reasonably expended.” Obenauf v. Frontier Fin. Group, Inc., 785 F.Supp.2d 1188, 1206
(D. Colo. 2011). Although the setting of a reasonable hourly rate is within the district
court’s discretion, it should “reflect the ‘prevailing market rates in the relevant
community.’” Jane L. v. Bangerter, 61 F.3d 1505, 1510 (10th Cir. 1995) (quoting Blum v.
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Stenson, 465 U.S. 886, 895 (1984)).
Plaintiffs seek an award of attorney fees for the work performed by Ian L. Saffer,
Kathryn L. Bohmann1, Miranda C. Martinez, and Crystal M. Boyle. Saffer Decl. [#18-1
at ¶ 4]. The hourly rates charged for the work performed on the case by Mr. Saffer, Ms.
Martinez, and Ms. Boyle are $500, $325, and $160, respectively. Id. at ¶ 7. I find and
conclude that each of these hourly rates is reasonable.
First, the hourly rates charged fall within the reasonable and acceptable range of
rates charged by intellectual property attorneys of comparable skill, experience, and
reputation for the performance of similar services in bringing copyright infringement
claims. Saffer Decl. [#18-1 at ¶ 18-1]; Id. at Exs. 4, 5; see also Ward v. Siebel, 2012
U.S. Dist. LEXIS 83171, *11-13 (D. Colo. June 15, 2012) (attorneys at the peer law firm
of Cooley Godward Kronish LLP billed at hourly rates of $410-760). Additionally, as the
plaintiffs note credibly and cogently, in intellectual property cases, courts frequently use
the survey of the American Intellectual Property Law Association (AIPLA) in determining
a reasonable rate. See, e.g., Takeda Chem. Indus., Ltd. v. Mylan Labs, Inc., 2007 WL
840368, at *3 (S.D.N.Y. Mar. 21, 2007) (“In determining a reasonable rate, a court may
refer to American Intellectual Property Law Association (“AIPLA”) surveys.”) (citing
Mathis v. Spears, 857 F.2d 749, 755 (Fed. Cir. 1988) (“As the law makes clear, the
district court properly considered the [AIPLA] surveys”)); see also Yamanouchi Pharm.
Co., Ltd. v. Danbury Pharmacal, Inc., 51 F. Supp. 2d 302, 304-305 (S.D.N.Y. 1999) (“In
determining a reasonable rate, the court may refer to American Intellectual Property
Law Association (AIPLA) surveys ...”) The rates for Mr. Saffer and Ms. Martinez are
consistent with the rates reported in the most recent AIPLA survey and reflect
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appropriately the specialized nature of intellectual property law services. See Saffer
Decl. [#18-1 at ¶¶ 8-10]; id. Ex. 3].
Second, the number of hours charged by Mr. Saffer, Ms. Martinez, and Ms. Boyle
are reasonable and supported amply by invoices based on detailed contemporaneous
time records. See Saffer Decl. [#18-1 at ¶ 6]; id., Exs. 1, 2. Counsel for plaintiffs spent a
total of 18.4 hours on this case, which included: performing pre-filing research;
preparing the complaint, exhibit, summonses, and civil cover sheet for filing; effecting
service; preparing the motion for entry of default; and drafting and marshaling the
motion for default judgment and all concomitant supporting declarations and exhibits.
See Saffer Decl. [#18-1]; id. Exs. 1, 2. I find that the number of hours billed is
reasonable and arguably much lower than other law firms for the same type of work.
Cf. Stockart.com, 2011 U.S. Dist. LEXIS 20470 at *48 (75 hours was a reasonable
estimate of attorney hours spent on the case from filing to default judgment).
Furthermore, plaintiffs’ attorneys fees total only $6,542.50. This total amount is
reasonable in light of the nature of the case and the services provided by counsel. See
id., 2011 U.S. Dist. LEXIS 20470 at *48 (awarding attorney fees of $39,337.50 in default
judgment); Girlsongs, 625 F.Supp.2d at 1133 (awarding attorney fees of $14,322.00 in
default judgment). Thus, while the hourly rates charged by plaintiffs’ counsel are slightly
higher than the rates charged by some lawyers in the Denver-Metro area, the total fees
charged is in line with or lower than amounts awarded in other copyright cases. Finally,
the relevant evidence demonstrates that counsel’s expertise in and experience with
copyright litigation – including representation of BMI in numerous prior copyright cases
– achieved efficiencies that render the total amount requested reasonable. Saffer Decl.
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[#18-1 at ¶ 14].
I conclude ultimately that the renewed motion should be granted and that
attorney fees of $6,543.50 should be awarded. Thus, appropriate orders should be
entered.
THEREFORE, IT IS ORDERED as follows:
1. That Plaintiffs’ Renewed Motion for Attorneys’ Fees [#18], filed July 12,
2012, is GRANTED;
2. That the plaintiffs are AWARDED attorney fees of $6,543.50; and
3. That the Default Judgment is AMENDED to include attorney fees of
$6,543.50.
Dated February 27, 2013, at Denver, Colorado.
BY THE COURT:
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