Keeling v. New Rock Theater Productions, LLC et al

Filing 131

OPINION re: 113 MOTION for Attorney Fees filed by Jaime Keeling. In the court's view, defendants raised a legitimate factual issue regarding whether Garber actually owned or controlled New Rock and, accordingly, whether he could be vicariou sly liable for the other defendants' infringement. The jury, of course, concluded that he was liable, but Garber's defense was not objectively unreasonable. Therefore, because defendants' case was not objective unreasonable, and none of the other Bryant factors are strongly implicated, plaintiffs motion for attorney's fees is denied. (Signed by Judge Thomas P. Griesa on 3/11/2013) (mro)

USDCSDNY
DOCUMENT
ELECI'RONICAILY FILED

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

DOC#: __- - - - - - - - ­

DATE FILED: l:\...J" \\, He

JAIME KEELING,
Plaintiff,

10 Civ. 9345

v.

OPINION

NEW ROCK THEATER PRODUCTIONS,
LLC, EVE HARS, and ETHAN GARBER,

Defendants.

This is a copyright dispute between plaintiff Jaime Keeling and defendants Eve Hars,
Ethan Garber, and their production company, New Rock Theater Productions, LLC. The
work at issue is a theater production called Point Break LIVE!
A jury trial was concluded in this case on December 7, 2012. 1""'he jury found in
Keeling's favor, concluding that

•

Keeling is the sole-owner of Point Break LIVE!

• Point Break IJVE!wa"> a parody, and thus made fair use, of the film Point Break
• All three defendants infringed Keeling's copyright (though not willfully)
• Keeling suffered $50,000 in damages
• Defendants' profits over five years of infhnging activity totaled $200,000
Plaintiff has moved for attorneys fees totaling $84,500. 1. . h e motion is denied.
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The Copyright Act provides that, in the court's discretion, costs and a reasonable
attorney's fee may be awarded to the prevailing party in an infringement action. 17 U.S.C. §
505. In exercising that discretion the court considers "(1) the frivolousness of the non­
prevailing party's claims or defenses; (2) the party's motivation; (3) whether the claims or
defenses were objectively unreasonable; and (4) compensation and deterrence." Bryant v.
Media Right Prod's, Inc., 603 F.3d 135, 144 (2d Cir. 2010). In that calculus, the court
gives substantial weight to the third factor, whether the claims or defenses were objectively
unreasonable. Id.
In this case the defenses were not unreasonable. It is true that defendants' initial legal
contention, that a work of parody was not protectable unde:~ copyright law, was entirely
lacking in merit. If this had formed the entirety of defendants' case, the court might take a
dimmer view of the reasonableness of their defenses.
But defendants had other arguments. Defendants contended that Point Break LIVE!
was, in fact, a joint work of Keeling and a man named Jami(~ Hook. Hook testified at the
trial and the testimony he gave might indeed have supported this theory. The jury,
however, evidently found his testimony not to be credible.
Keeling goes further and suggests that defendants knew that Hook was not a true
coauthor all along, and that his testimony was "inherently incredible" - and thus could not
form the basis for an objectively reasonable defense - because it was internallv
contradictory. In fact, Keeling argues that Hook's testimony was "a fabrication" that

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defendants knew to be false and that they tried to shield from scrutiny by the plaintiff by
making Hook unavailable to them before trial.
In the court's view, however, it is far from clear that Hook's account, and the defense
based upon it, were concocted with the bad faith that Keeling ascribes to it. It is true that
Hars wrote, in 2007, the she believed Keeling's story and thought that Hook "is basically
trying to steal the credit/rights for something ITaime] conceived and created." But this
email was sent years before this lawsuit began, and there is ample evidence from which to
conclude that defendants' attitudes towards Hook and Keeling, and their respective
credibility, have changed considerably since dlen. And, taking Hook's testimony at face
value, it did lend some evidentiary support to the defendants' contention that Hook
coauthored Point Break LIVE! This defense was not objectively unreasonable.
Similarly, in the court's view, defendants raised a legitimate factual issue regarding
whether Garber actually oWfled or controlled New Rock and, accordingly, whether he
could be vicariously liable for the other defendants' infringement. The jury, of course,
concluded that he was liable, but Garber's defense was not objectively unreasonable.
Therefore, because defendants' case was not objectivelnreasonable, and none of the
other Bryant factors are strongly implicated, plaintiffs motion for attorney's fees is denied.

So ordered.
Dated: New York, New York
March 11,2013

dJ~~~~___________~_
~
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trhomas P. Griesa
United States DistrictJudge

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