Levitin et al v. Sony Music Entertainment et al

Filing 64

OPINION & ORDER re: 51 MOTION for Attorney Fees (Corrected). filed by Polo Grounds Music, Inc., Mr. 305, Inc., Sony Music Entertainment. For the foregoing reasons, Domestic Defendants' motion for attorneys' fees is denied. (As further set forth in this Order) (Signed by Judge Paul A. Crotty on 9/22/2015) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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LEE OSKAR LEVITIN /p/k/a LEE OSKAR,
as an individual and d/b/a IKKE-BAD
MUSIC; GREG ERRICO, as an individual
and d/b/a RADIO ACTIVE MATERIAL
PUBLISHING COMPANY; and KERI
OSKAR, an individual,

14 Civ. 4461 (PAC)

Plaintiffs,
-againstSONY MUSIC ENTERTAINMENT, a
wholly-owned subsidiary of SONY
CORPORATION OF AMERICA, a New
York corporation; MR. 305, INC., a Florida
corporation; POLO GROUNDS MUSIC,
INC., a New York corporation; SONY
MUSIC ENTERTAINMENT CANADA
INC., a Canadian corporation; SONY MUSIC
ENTERTAINMENT UK, a British entity of
unknown form; SONY MUSIC
ENTERTAINMENT GERMANY GMBH, a
German limited liability company; SONY
MUSIC ENTERTAINMENT AUSTRALIA,
LTD., an Australian limited company; SONY
MUSIC ENTERTAINM ENT ITALY, S.P.A.,
an Italian corporation; SONY MUSIC
ENTERTAINMENTME)(ICO S.A. DE C.V.,
a Mexican corporation; SONY MUSIC
EINTERTAINMENT ESPANA, S.L., a
Spanish limited liability company; SONY
MUSIC ENTERTAINMENT KOREA INC., a
South Korean corporation; and SONY MUSIC
ENTERTAINMENT FRANCE, a French
entity of unknown form,

D efendants.

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OPINION & ORDER

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The facts of this case are fully set forth in Levitin v. Sony Music Entertainment, 2015 WL
1849900 (S.D.N.Y. Apr. 22, 2015), which dismissed Plaintiffs' claims against Domestic
Defendants under the U.S. Copyright Act, but denied Affiliate Defendants' motion to dismiss.
On the basis of the dismissal of the claims against them, Domestic Defendants now seek
attorneys' fees from Plaintiffs 1 as the prevailing party in a copyright action under 17 U.S.C. §
505. The motion is denied.

DISCUSSION
I.

Applicable Law
Section 505 of the Copyright Act provides that "the court in its discretion may allow the

recovery of full costs by or against any party . . . . [T]he court may also award a reasonable
attorney's fee to the prevailing party as part of the costs." 17 U.S.C. § 505. Such fees "are
available to prevailing parties . . . but are not automatic." Medforms, Inc. v. Healthcare Mgmt.

Sols., Inc., 290 F.3d 98, 117 (2d Cir. 2002). In determining whether attorneys' fees are
warranted, the Court considers, inter alia, "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,
510 U.S. 517, 534 n.19 (1994) (citation and internal quotation marks omitted). Objective
unreasonableness is "given substantial weight in determining whether an award of attorneys' fees
is warranted," Matthew Bender & Co., Inc. v. West Publ'g Co., 240 F.3 d 116, 122 (2d Cir. 2001),
and a copyright claim is "objectively unreasonable when the claim is clearly without merit or
otherwise patently devoid oflegal or factual basis," Porto v. Guirgis, 659 F. Supp. 2d 597, 617

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The parties agree that Domestic Defendants may not seek attorneys' fees from PlaintiffKeri Oskar, because she
did not join in the claim against Domestic Defendants. Pl. Mem. at 4-5; Reply at 1 n.l . References to Plaintiffs
refer to Levitin and Errico.

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(S.D.N.Y. 2009) (citation and internal quotation marks omitted). Once the Court determines
whether attorneys' fees are merited, the Court assesses a "reasonable" amount of fees. Muller v.
Twentieth Century Fox Film Corp., 2011 WL 3678712, at *2 (S.D.N.Y. Aug. 22, 2011).
II.

Analysis
Domestic Defendants argue that they are entitled to attorneys' fees because they

prevailed on their motion to dismiss and because Plaintiffs' claim with respect to the predicate
act doctrine was objectively unreasonable. Domestic Defendants assert that Plaintiffs relied on
outdated case law and should have known that Domestic Defendants could not be held liable for
infringement; they characterize the case as "not a close call." Def. Mem. at 5-8. They suggest
that awarding attorneys' fees would further the Copyright Act's goals of compensation and
deterrence. I d. at 8-11. Domestic Defendants suggest no other reason for granting attorneys'
fees.
Domestic Defendants' motion fails because Plaintiffs' claim was not objectively
unreasonable and the case was, in fact, a close call. See, e.g., Pearson Educ., Inc. v. Liu, 2013
WL 6916883, at *3 (S.D.N.Y. Dec. 27, 2013) (" [W]hile defendant is correct that plaintiffs'
position was ultimately untenable, it is not the case that it was objectively unreasonable from the
outset."). Plaintiffs' complaint listed numerous acts on the part of Domestic Defendants, and the
Court could conceivably have determined that one of these acts constituted a predicate act in
violation of the U.S. Copyright Act. It was not objectively unreasonable for Plaintiffs to seek
such a ruling. The determination here of what constitutes an act of infringement in the U.S. that
permits further reproduction abroad was not so obvious or straightforward as to render Plaintiffs'
attempts to classify Domestic Defendants' actions as such objectively unreasonable. That the
Court relied on a principle that has been "generally accepted" by other courts does not mean it

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was unreasonable for Plaintiffs to urge the Court to adopt the opposite reasoning. Likewise, it
was reasonable for Plaintiffs to rely on case law that the Court ultimately "decline[d) to adopt."
Levitin, 2015 WL 1849900, at *5.

Moreover, an award of attorneys' fees here would not serve the Copyright Act's
underlying policies. This is a complicated case in many respects, and Plaintiffs' suit served to
further define the contours of the predicate act doctrine. Case law addressing this issue is neither
recent nor plentiful, and Plaintiffs' suit served a valuable purpose in requiring the Court to
determine and articulate the boundaries of the predicate act doctrine, particularly as it applies in
today's digital world. See, e.g., Matthew Bender, 240 F.3d at 122 ("When close infringement
cases are litigated, copyright law benefits from the resulting clarification of the doctrine's
boundaries. But because novel cases require a plaintiff to sue in the first place, the need to
encourage meritorious defenses is a factor that a district court may balance against the potentially
chilling effect of imposing a large fee award on a plaintiff, who, in a particular case, may have
advanced a reasonable, albeit unsuccessful, claim.") (quoting Lotus Dev. Corp. v. Borland Jnt 'I,
Inc. , 140 F.3d 70, 75 (1st Cir. 1998)).

CONCLUSION
For the foregoing reasons, Domestic Defendants' motion for attorneys' fees is denied.

SO ORDERED

Dated: New York, New York
September 22, 2015

PAUL A. CROTT
United States District Judge

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