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)

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

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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
[phone]
Fax: [phone]

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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