Brownmark Films, LLC v. Paramount Pictures Corporation et al

Filing 34

MOTION for Attorney Fees and Costs by All Defendants. (Attachments: # 1 Memorandum of Law, # 2 Wickers Dec with Exhibits A-I, # 3 Peterson Dec with Exhibit J, # 4 Appendix, # 5 Proposed Order)

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN BROWNMARK FILMS, LLC, Plaintiff, v. Case No. 2:10-cv-01013-JPS COMEDY PARTNERS, MTV NETWORKS, PARAMOUNT PICTURES CORPORATION, SOUTH PARK DIGITAL STUDIOS LLC, and VIACOM INTERNATIONAL INC., Defendants. DEFENDANTS' MOTION TO RECOVER ATTORNEYS' FEES AND COSTS In accordance with 17 U.S.C. § 505 and Federal Rule of Civil Procedure 54(d), defendants Comedy Partners, MTV Networks, Paramount Home Entertainment Inc., South Park Digital Studios LLC, and Viacom International Inc. (collectively "the South Park Defendants") hereby move to recover their attorneys' fees and costs from plaintiffBrownmark Films, LLC. This Motion is brought on the following grounds: (1) the South Park Defendants' fair-use defense was completely successful, resulting in a dismissal with prejudice at the pleading stage; (2) the South Park Defendants' defense was strong, and Plaintiffs lawsuit was objectively unreasonable, because the parodic nature of the South Park Defendants' use was easily perceived; (3) Plaintiff's lawsuit was frivolous, as this "classic parody" case (see Brownmark Films LLC v. Comedy Partners, 2011 U.S. Dist. LEXIS 72684 at *24 (E.D. Wis. July 6, 2011) was not DWT 17621974v2 3970094·000069 in an unsettled area of law and had little likelihood of success; (4) Plaintiff's motivation is questionable, as the South Park Defendants repeatedly explained to Plaintiff that the use was a protected fair use, and Plaintiff "filed briefs that wholly ignored the central issue of this litigation, fair use" (id., 2011 U.S. Dist. LEXIS 72684 at *27); and (5) fee recovery in this case would deter others from bringing frivolous copyright infringement lawsuits based on obvious parodies. These grounds are set forth fully in the accompanying Memorandum of Law. The South Park Defendants, therefore, respectfully request that this Court enter the Proposed Order submitted with this Motion. DATED: July 20,2011 DAVIS WRIGHT TREMAINE LLP ALONZO WICKERS IV California State Bar No. 169454 JEFF GLASSER California State Bar No. 252596 By: Is/ Alonzo Wickers IV Alonzo Wickers IV Attorneys for Defendants COMEDY PARTNERS, MTV NETWORKS, PARAMOUNT HOME ENTERTAINMENT, SOUTH PARK DIGITAL STUDIOS LLC, and VIACOM INTERNATIONAL INC. DAVIS WRIGHT TREMAINE LLP 865 S. Figueroa St., Suite 2400 Los Angeles, California 90017-2566 (213) 633-6800 Fax: (213) 633-6899 2 DWT 17621974v2 3970094-000069 CERTIFICATE OF SERVICE I hereby certify that on July 20, 20 II, I caused the foregoing document to be electronically filed with the Clerk of the Court using the ECF system which will make this document available to all counsel of record for viewing and downloading from the ECF system. Dated: July 20, 2011. DWT 17644965vl 3970094-000069 Is/ Alonzo Wickers IV Alonzo Wickers IV

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