Broadcast Music, Inc. et al v. DFK Entertainment, LLC et al
Filing
27
MEMORANDUM-DECISION and ORDER - That BMIs motion for summary judgment (Dkt. No. 24) isGRANTED; That DFK's cross-motion for partial summary judgment(Dkt. No. 25) is DENIED; That the Clerk shall enter judgment in favor of BMI andagainst defendant DFK Entertainment, LLC and Dominic Karl in theamount of $39,475.47, which represents $20,000 in statutory damages,$17,259 in attorneys' fees and $2,216.47 in costs. Signed by Chief Judge Gary L. Sharpe on 3/15/2012. (jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________
BROADCAST MUSIC, INC. et al.,
Plaintiffs,
1:10-cv-1393
(GLS/DRH)
v.
DFK ENTERTAINMENT, LLC, d/b/a
Sneaky Pete’s a/k/a Club Sneaky Pete’s,
and DOMINIC F. KARL,
Defendants.
___________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFFS:
Hodgson, Russ Law Firm
The Guaranty Building
140 Pearl Street
Suite 100
Buffalo, NY 14202-4040
FOR THE DEFENDANTS:
Tabner, Ryan Law Firm
18 Corporate Woods Blvd.
Albany, NY 12211-2605
PAUL I. PERLMAN, ESQ.
RICHARD L. WEISZ, ESQ.
WILLIAM J. KENIRY, ESQ.
DANA L. SALAZAR, ESQ.
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiffs Broadcast Music, Inc., Warner-Tamerlane Publishing Corp.,
Amazement Music, Hip City Music Inc., Hifrost Publishing, Wide Grooves
Music, Gliro Music Inc. and Songs of Universal, Inc. (collectively “BMI”)
commenced this action under the Copyright Act of 1976,1 alleging
defendants DFK Entertainment, LLC and Dominic Karl (collectively “DFK”)
committed five acts of willful copyright infringement. (See Compl. ¶¶ 1724, Dkt. No. 1.) Pending is BMI’s motion for summary judgment and DFK’s
cross-motion for partial summary judgment. (See Dkt. Nos. 24, 25.) For
the reasons that follow, BMI’s motion is granted and DFK’s cross-motion is
denied.
II. Background2
Under its agreements with various music publishing companies and
composers, BMI licences “the right to publicly perform copyrighted musical
compositions on behalf of the copyright owners of those works.” (See
BMI’s Statement of Material Facts (SMF) ¶¶ 1-2, Dkt. No. 24, Attach. 8.) In
turn, BMI sells “blanket licence agreements,” which entitle music users,
such as DFK, to “publicly perform any of the works in BMI’s repertoire.”
1
See Pub. L. No. 94-553, 90 Stat. 2541 (codified as amended in scattered sections of
17 U.S.C.).
2
The facts are undisputed unless otherwise noted.
2
(See id. ¶ 4.) Albeit “non-exclusive,” BMI acquired public performance
rights to “Ain’t No Stoppin’ Us Now,” “Before I Let Go,” “Poison,” “Rebirth of
Slick Cool Like Dat” and “Mona Lisa” (collectively “the Works”),3 each of
which was performed without BMI’s authorization at DFK’s nightclub,
Sneaky Pete’s. (See id. ¶¶ 3, 6, 18-22.)
Located on Central Avenue in Albany, New York,4 Sneaky Pete’s
held upwards of 600 people, and charged between $10 and $40 for
admission. (See Dkt. 24, Attach. 7 at 12-14; DFK’s SMF ¶ 24, Dkt. No. 25,
Attach. 3.) From September 19, 2007 to February 6, 2011, Sneaky Pete’s
was owned and operated by DFK Entertainment LLC, through its sole
member and owner, Dominic Karl. (See BMI’s SMF ¶¶ 6-8.) Although he
was only present 70% of the time it was open, Karl was the club’s general
manager, and as such, was authorized to “control the activities at Sneaky
Pete’s.” (See id. ¶¶ 9, 12, 14.) For example, after Karl was served in this
case, he “posted a notice that all disc jockeys should refrain from playing
songs that are licensed only through BMI.” (DFK’s SMF ¶ 59.)
3
All of the Works have been registered with the Copyright Office, and a registration
certificate was issued for each to BMI, or its predecessor in interest. (See BMI’s SMF ¶ 23.)
4
According to DFK, it only received mail at its mailing address at 299 Lake Road in
Ballston Lake, New York. (See DFK’s SMF ¶ 24, Dkt. No. 25, Attach. 3.)
3
With respect to the infringements at issue, DFK concedes5 that the
Works were publicly performed at Sneaky Pete’s without BMI’s
authorization on either March 28-29, 2009 or July 24-25, 2010. (See id. ¶¶
18-22.) While DFK believed its ASCAP license, standing alone, was
sufficient,6 (see id. ¶¶ 47, 50), BMI, prior to commencing the investigation,
placed seventy-nine telephone calls and sent sixteen letters to Sneaky
Pete’s regarding the public performance of its music. (See id. ¶¶ 25-26,
47-50.) Though six letters were sent directly to Sneaky Pete’s—as
opposed to DFK’s preferred mailing address—Karl admits that he spoke
with a BMI representative “[o]n at least one occasion.” (Id. ¶ 26.) In total,
BMI claims it was deprived of $25,674 in licensing fees for the period
beginning December 2007 and ending February 2011. (See id. ¶ 28.)
III. Standard of Review
The standard of review under Fed. R. Civ. P. 56 is well established
5
DFK’s response to BMI’s SMF contains several responses which state “Defendants
do not deny this assertion.” (Dkt. No. 25, Attach. 3 ¶¶ 1-4, 21-26.) Although the distinction
between this statement and a simple admission is unclear, the court deems these paragraphs
admitted. See N.D.N.Y. L.R. 7.1(a)(3).
6
ASCAP, like BMI, is a “performing rights society” under 17 U.S.C. § 101. (See Dkt.
No. 26, Attach. 2 ¶ 33.) Notwithstanding the fact that DFK did not produce a copy of its
ASCAP license—which only covers March 1, 2009 to February 29, 2010—until after discovery
was closed, DFK has yet to show which of the Works ASCAP authorized it to play. (See id.;
see also Dkt. No. 25, Attach. 5.)
4
and will not be repeated here. For a full discussion of the standard, the
court refers the parties to its decision in Wagner v. Swarts, No. 1:09-cv652, 2011 WL 5599571, at *4 (N.D.N.Y. Nov. 17, 2011).
IV. Discussion
BMI argues it is entitled to summary judgment because it has
provided uncontroverted evidence which proves DFK infringed the
copyrights in question. (See Dkt. No. 24, Attach. 9 at 6-8.) While not
admitting that BMI proved its case, DFK’s “primary defense . . . is the
unreasonableness of [BMI’s] damages demands.” (Dkt. No. 25, Attach. 1
at 4.) Thus, before addressing the issue of damages, the court discusses
the sufficiency of BMI’s proof with respect to its infringement claim.
A.
Prima Facie Case of Infringement
“Copyright infringement is established when the owner of a valid
copyright demonstrates unauthorized copying.” Repp v. Webber, 132 F.3d
882, 889 (2d Cir. 1997); see 17 U.S.C. § 501(a). In the context of musical
works, “copying” means the right “to perform the copyrighted work
publicly.” 17 U.S.C. § 106(4). Thus, establishing a prima facie case of
copyright infringement in musical works hinges on proof of the following:
(1) the originality and authorship of the compositions involved; (2)
5
compliance with all formalities required to secure a copyright
under Title 17, United States Code; (3) that plaintiffs are the
proprietors of the copyrights of the compositions involved in this
action; (4) that the compositions were performed publicly for profit
(by the defendants); and (5) that the defendants had not received
permission from any of the plaintiffs or their representatives for
such performance.
Boz Scaggs Music v. KND Corp., 491 F. Supp. 908, 912 (D. Conn. 1980)
(internal quotation marks and citations omitted); see also 17 U.S.C. §
410(c) (stating that in a judicial proceeding, a copyright registration “shall
constitute prima facie evidence of the validity of the copyright and of the
facts stated in the certificate.”).
Here, BMI submitted affidavits, certified infringement reports, and
copyright registrations for the Works that prove all of the elements of its
infringement claim. (See generally Dkt. No. 24, Attachs. 1-5.) Because
DFK neither challenged BMI’s evidence nor refuted its averments,7 the
7
DFK’s belief regarding its ASCAP license is immaterial. (See Dkt. No. 25, Attach. 1
at 5.) First, the documentation provided shows an ASCAP license for the period of March 1,
2009 to February 28, 2010; there is no proof of an ASCAP licence for 2008, or in July 2010
when two of the Works were performed at Sneaky Pete’s. (See Dkt. No. 25, Attach. 5.)
Second, DFK did not produce the license until after discovery closed. (See Dkt. No. 26,
Attach. 3 at 8.) And finally, even if the license was admissible, DFK failed to plead a licence
defense in either of its Answers, and thus, the defense is waived. (See generally Dkt. No. 17,
18); See Fed. R. Civ. P. 8(c); see also Tasini v. New York Times Co., Inc., 206 F.3d 161, 17071 (2d Cir. 2000) (“[W]here an author brings an infringement action against a purported
licensee, the license may be raised as a defense . . . .”) (internal citation omitted)); Travellers
Int’l, A.G. v. Trans World Airlines, Inc., 41 F.3d 1570, 1580 (2d Cir. 1994) (“The general rule in
federal courts is that a failure to plead an affirmative defense results in a waiver.”).
6
court concludes that there are no genuine issues of material fact and BMI
is entitled to summary judgment on its copyright infringement claim.
B.
Damages
Turning to the question of damages, BMI argues that both DFK
Entertainment, LLC and Karl are liable for the infringement, and as such,
should be ordered to pay statutory damages, as well as reasonable
attorneys’ fees. (See Dkt. No. 24, Attach. 9 at 13-18.) DFK counters that
its infringement was “innocent,” and thus, only a minimal award of
damages is appropriate. (See Dkt. No. 25, Attach. 1 at 4-5.) It further
claims that regardless of the damages awarded, Karl is not individually
liable for the infringement. (See id. at 6-8.) The court addresses each of
these arguments in turn.
1.
Vicarious Liability
DFK asserts the Karl is not individually liable because he has neither
“‘the right and ability to supervise the infringing activity,’” nor “‘a direct
financial interest in such activities.’” (Dkt. No. 25, Attach. 1 at 6.) The court
disagrees.
Where, as here, direct liability for copyright infringement is
inapplicable, the defendant may still be responsible as either a vicarious or
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contributory infringer. See Screen Gems-Columbia Music, Inc. v. Metlis &
Lebow Corp., 453 F.3d 552, 554 (2d Cir. 1972) (“Copyright infringement is
in the nature of a tort, for which all who participate in the infringement are
jointly and severally liable.”). Though not explicitly provided for in 17
U.S.C. § 501(a), an individual, “who, with knowledge of the infringing
activity, induces, causes or materially contributes to the infringing conduct
of another, may be held liable as a ‘contributory’ infringer.” Arista Records,
LLC v. Doe 3, 604 F.3d 110, 117 (2d Cir. 2010) (internal quotation marks
and citations omitted). Stated another way, a person who knows or has
“reason to know of the direct infringement,” and “engages in ‘personal
conduct that encourages or assists the infringement,’” will be liable for
contributory infringement. Id. at 118 (citing A&M Records, Inc. v. Napster,
Inc., 239 F.3d 1004, 1019-20 (9th Cir. 2001) (internal quotation marks
omitted)); see, e.g., In re Aimster Copyright Litig., 334 F.3d 643, 650 (7th
Cir. 2003) (stating that in copyright law, “[w]illful blindness is knowledge”).
Vicarious infringement, on the other hand, does not require proof of
knowledge. Gershwin Pub. Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d
1159, 1162 (2d Cir. 1971). Rather, an individual is jointly and severally
liable as a vicarious infringer “if he has the right and ability to supervise the
8
infringing activity and also has a direct financial interest in such activities.”
Id.
In the instant case, it is undisputed that DFK Entertainment, LLC is
liable as a contributory infringer since it not only owned and operated
Sneaky Pete’s, but it also profited from, and had the right to control, the
club’s activities. (See Dkt. No. 24, Attach. 9 at 10; BMI’s SMF ¶¶ 6, 14.)
While Karl may also be liable for contributory infringement, the parties
arguments’ regarding Karl’s individual liability focus solely on theory of
vicarious infringement. (See Dkt. No. 24, Attach. 9 at 10-13; Dkt. No. 25,
Attach. 1 at 6-8.)
Irrespective of the theory applied, DFK’s stance on Karl’s individual
liability is untenable. Besides being the sole member and owner of DFK
Entertainment, LLC, which in turn owned and operated Sneaky Pete’s,
DFK admitted that Karl was the general manager of Sneaky Pete’s and
present 70% of the time it was open. (See Dkt. No. 25, Attach. 3 ¶¶ 5-10,
12.) Thus, even if Karl allowed others to “make day-to-day management
decisions,” (Dkt. No. 25, Attach. 4 ¶ 11), he, by virtue of his positions with
DFK Entertainment, LLC and Sneaky Pete’s, had the “right and ability to
supervise the infringing activity.” Gershwin Pub. Corp., 443 F.2d at 1162.
9
Furthermore, Karl testified that he drew roughly $35,000 per year in
paychecks from Sneaky Pete’s, and answered “No” when asked if he
received “any amounts from the operation of Sneaky Pete’s other than
[those] draws.” (See Dkt. No. 24, Attach. 7 at 17-18.) Indeed, Karl (Id. at
18.) These statements establish that Karl had the requisite financial
interest in Sneaky Pete’s. See Gershwin Pub. Corp., 443 F.2d at 1162.
Because Karl had the “right and ability to supervise the infringing
activity and also ha[d] a direct financial interest in such activities,” his
knowledge thereof is irrelevant. Id. It follows that DFK Entertainment, LLC
and Karl are jointly and severally liable for the infringement of the Works.
2.
Statutory Damages
To remedy the infringement of the Works, BMI seeks $45,000 in
statutory damages. (Dkt. No. 24, Attach. 9 at 13-17.) DFK contends that
BMI’s request is excessive, and should be reduced to $200 per
infringement since it was an “innocent infringer.” (Dkt. No. 25, Attach. 1 at
4-5.) Again, the court concurs with BMI.
Under 17 U.S.C. § 504(c)(1), a plaintiff may seek statutory damages
in lieu of actual damages. The standard spectrum of permissible damages
ranges from $750 to $30,000 per infringement, as the court deems just.
10
See id. However, damages may be as low as $200 per infringement if
such infringement was “innocent,” and as high as $150,000 dollars per
infringement if willful. See 17 U.S.C. § 504(c)(2). Willfulness is
established through proof that the infringer “had knowledge that its conduct
represented infringement or perhaps recklessly disregarded the
possibility.” Twin Peaks Prods., Inc. v. Publ’n Int’l, Ltd., 996 F.2d 1366,
1382 (2d Cir. 1993). Conversely, a finding of innocence requires proof—
from the defendant—that it “‘was not aware and had no reason to believe
that [its] acts constituted an infringement.’” D.C. Comics Inc. v. Mini Gift
Shop, 912 F.2d 29, 35 (2d Cir. 1990) (quoting 17 U.S.C. § 504(c)(2)).
In determining a proper statutory award, courts should consider the
following:
(1) the infringer’s state of mind; (2) the expenses saved, and
profits earned, by the infringer; (3) the revenue lost by the
copyright holder; (4) the deterrent effect on the infringer and third
parties; (5) the infringer’s cooperation in providing evidence
concerning the value of the infringing material; and (6) the
conduct and attitude of the parties.
Bryant v. Media Right Prods., Inc., 603 F.3d 135, 144 (2d Cir. 2010).
Though no individual factor is paramount, the award should “put infringers
‘on notice that it costs less to obey the copyright laws than to violate
11
them.’” Broadcast Music, Inc. v. R Bar of Manhattan, Inc., 919 F. Supp.
656, 660 (S.D.N.Y. 1996) (quoting Rodgers v. Eighty Four Lumber Co.,
623 F. Supp. 889, 892 (W.D. Pa. 1985)). To this end, courts often impose
statutory damages in an amount more than double the unpaid licensing
fees where the infringement was not innocent. Id.
As an initial matter, DFK’s claim that it was an “innocent infringer” is
belied by the record. BMI placed seventy-nine telephone calls and sent
sixteen letters to Sneaky Pete’s regarding the public performance of BMI’s
music. (See BMI’s SMF ¶ 26.) No matter of how many of the letters it
actually received, Karl admits that he spoke with a BMI representative “[o]n
at least one occasion.” (Id.) When coupled with the fact that DFK posted
a notice warning against playing BMI’s music, (see DFK’s SMF ¶ 59), it is
clear that DFK had reason to believe its “acts constituted an infringement.”
D.C. Comics Inc., 912 F.2d at 35 (internal quotation marks omitted).
Here, BMI’s proposed statutory award of $9,000 per infringement, or
$45,000 total, represents an amount that is 1.75 times the amount DFK
would have paid BMI in licensing fees between December 2007 and
12
September 2010.8 (See Dkt. No. 24, Attach. 9 at 15-17.) Undoubtedly, the
following factors weigh in favor of such an award: (1) BMI sent at least ten
properly addressed letters to DFK, each of which informed DFK of the
need to purchase a BMI license; (2) the seventy-nine telephone calls BMI
made to DFK regarding the same; and (3) DFK’s unwillingness throughout
this litigation to disclose its financial records. (See Dkt. No. 25, Attach. 3 ¶
26, Dkt. No. 25, Attach. 38 ¶¶ 18-19.) Indeed, because DFK refused to
produce the requested income documentation for both DFK Entertainment,
LLC and Karl, it is impossible to ascertain “the expenses saved, and profits
earned,” by DFK’s infringement of the Works. Bryant, 603 F.3d at 144.
However, BMI has not proven that DFK infringed its copyrights over the
entirety of the three-year period it cites in support of its claim. (See Dkt.
No. 24, Attach. 9 at 15.) Given that BMI’s evidence only establishes
infringements over a two-year span—namely, the years 2009 and
2010—the $45,000 award must be reduced. (See BMI’s SMF ¶ 18.)
In sum, after weighing all of these factors, the court concludes that a
statutory award of $4,000 per infringement, or $20,000 total, is appropriate
8
Because this figure falls within the standard spectrum of awards, a finding, and
discussion of, willfulness is unnecessary. See 17 U.S.C. § 504(c)(1).
13
as it not only remedies the injury sustained by BMI, but also “put[s]
infringers[, like DFK,] on notice that it costs less to obey the copyright laws
than to violate them.” R Bar, 919 F. Supp. at 660 (internal quotation marks
omitted).
3.
Attorneys’ Fees and Costs
As the prevailing party, BMI requests $23,379 in attorneys’ fees and
$2,216.47 in costs. (See Dkt. No. 24, Attach. 6 ¶ 13.) In response, DFK
argues that BMI is not entitled to attorneys’ fees because it, inter alia,
attempted to settle the litigation before commencing discovery. (See Dkt.
No. 25, Attach. 1 at 8-12.) Though appropriate in this case, BMI’s
requested attorneys’ fees are unreasonable.
The Copyright Act provides that the court may award reasonable
attorneys’ fees to the prevailing party at its discretion. See 17 U.S.C. §
505. In making this determination, the court considers the following
factors: “‘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.’” Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994)
(quoting Lieb v. Topstone Indus., Inc., 788 F.2d 151, 156 (3d Cir. 1986)).
14
As discussed above, DFK repeatedly ignored BMI’s letters and
phone calls, and in so doing, deprived BMI of at least $16,000 in licensing
fees. (See BMI’s SMF ¶¶ 25-28.) Moreover, its settlement offer of
$5,000—a factor which DFK asserts shows its willingness to avoid
litigation—was objectively unreasonable as it did not even cover the cost of
a one-year license from BMI. (See Dkt. No. 25, Attach. 38 ¶ 8; Dkt. No. 26
¶¶ 3-6.) Finally, DFK has offered no viable defense for its infringement of
the Works, yet still refused to fully acknowledge responsibility for its
conduct. (See, e.g., Dkt. Nos. 17, 18; Dkt. No. 25, Attach. 1 at 4; Dkt. No.
25, Attach. 3 ¶¶ 1-4, 21-26.) As such, an award of attorneys’ fees here is
both appropriate and necessary “to advance [the] considerations of
compensation and deterrence.” Fogerty, 510 U.S. at 534 n.19 (internal
quotation marks omitted).
Regarding the amount of attorneys’ fees to award, courts within the
Second Circuit apply the “presumptively reasonable fee analysis” in
determining the appropriate remuneration. Porzig v. Dresdner, Kleinwort,
Benson, North Am. LLC, 497 F.3d 133, 141 (2d Cir. 2007). This analysis
“involves determining the reasonable hourly rate for each attorney and the
reasonable number of hours expended, and multiplying the two figures
15
together to obtain the presumptively reasonable fee award.” Id. In
determining what is reasonable the following factors are useful:
(1) the time and labor required; (2) the novelty and difficulty of the
questions; (3) the level of skill required to perform the legal
service properly; (4) the preclusion of employment by the attorney
due to acceptance of the case; (5) the attorney's customary
hourly rate; (6) whether the fee is fixed or contingent; (7) the time
limitations imposed by the client or the circumstances; (8) the
amount involved in the case and the results obtained; (9) the
experience, reputation, and ability of the attorneys; (10) the
‘undesirability’ of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in similar
cases.
Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of Albany, 493
F.3d 110, 114 n.3 (2d Cir. 2007) (quoting Johnson v. Georgia Highway
Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)). However, the facts
and circumstances of each case are different and the court is not
compelled to award the same hourly rates in every case. In fact, “a district
court may use an out-of-district hourly rate—or some rate in between the
out-of-district rate sought and the rates charged by local attorneys—in
calculating the presumptively reasonable fee if it is clear that a reasonable,
paying client would have paid those higher rates.” Arbor Hill, 522 F.3d at
191.
In the instant case, BMI’s attorney submitted an affidavit which
16
shows that his firm spent 68.5 hours litigating this case, with rates ranging
from $130 to $400 per hour. (See Dkt. No. 24, Attach. 6 ¶¶ 5-10; Dkt. No.
24, Attach. 7 at 68-80.) Specifically, BMI’s records show: attorney
Perlman, a senior partner in Buffalo, New York, spent 58 hours on this
case at an average hourly rate of $375 per hour; attorney Weisz, a senior
partner in Albany, New York, spent 1.1 hours on this case at an hourly rate
of $325 per hour; attorney Grimmick, a partner in Albany, New York, spent
2.6 hours on this case at an hourly rate of $240 per hour; attorney
Coheley, an associate in Buffalo, New York, spent 2.0 hours on this case
at an hourly rate of $195 per hour; and 3 hours spent on this case by Leslie
Fischer, a legal assistant, at an hourly rate of $130 per hour.9 (See id.)
Notwithstanding the potential complexities involved in copyright litigation,
and the need to have counsel, such as BMI’s, who is conversant with the
practice area, the court is unpersuaded that the fees requested, namely
the hourly rates, are reasonable.
Comparatively, BMI’s rates are higher than those accepted by other
9
The court calculated the total number of hours for each individual on the basis of the
records provided. (See Dkt. No. 24, Attach. 6 ¶ 5-10; Dkt. No. 24, Attach. 7 at 68-80.)
Though it would have been helpful for BMI to submit totals for each, its failure to do so is of no
moment, especially since DFK failed to contest any of the individual fees. (See Dkt. No. 25,
Attach. 1 at 8-12.)
17
courts in the Western and Northern Districts. For example, Judge Foschio,
in the Western District of New York, recently stated the following were
reasonable rates in that district: $355 per hour for a senior partner, $250
per hour for partners, $180 per hour for associates, and $100 per hour for
paralegals. See Granite Music Corp. v. Ctr. St. Smoke House, Inc., 786 F.
Supp. 2d 716, 739 (W.D.N.Y. 2011). And in this district, the “prevailing
hourly rates,” which may be slightly higher now, “are $210 per hour for an
experienced attorney, $150 per hour for an attorney with more than four
years experience, $120 per hour for an attorney with less than four years
experience, and $80 per hour for paralegals.” See, e.g., Lore v. City of
Syracuse, Dkt. Nos. 09-3772-cv(L), 09-4206-cv(XAP), 2012 WL 310839, at
*38 (2d Cir. Feb. 2, 2012) (internal quotation marks omitted). Based on
these figures, the court concludes that, in this case, the following are
reasonable rates: $270 for partners, $165 for associates, and $90 for
paralegals.
Thus, after considering the factors discussed above, the parties’
arguments regarding the propriety of attorneys’ fees, and the
reasonableness of the time spent litigating this case, the court awards BMI
$17,259 in attorneys’ fees and $2,216.47 in costs.
18
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that BMI’s motion for summary judgment (Dkt. No. 24) is
GRANTED; and it is further
ORDERED that DFK’s cross-motion for partial summary judgment
(Dkt. No. 25) is DENIED; and it is further
ORDERED that the Clerk shall enter judgment in favor of BMI and
against defendant DFK Entertainment, LLC and Dominic Karl in the
amount of $39,475.47, which represents $20,000 in statutory damages,
$17,259 in attorneys’ fees and $2,216.47 in costs; and it is further
ORDERED that Clerk shall close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
March 15, 2012
Albany, New York
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