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' MEMORANDUM OF LAW IN SUPPORT OF MOTION TO RECOVER
ATTORNEYS' FEES AND COSTS

Defendants Comedy Partners, MTV Networks, Paramount Home Entertainment Inc.,
South Park Digital Studios LLC, and Viacom International Inc. (collectively "the South Park
Defendants") respectfully submit the following memorandum of law in support of their motion
to recover $46,775.23 in attorneys' fees and costs that they have incurred in this action, plus the
amount incurred in preparing this fee motion and reply.

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TABLE OF CONTENTS

1.

SUMMARY OF ARGUMENT ........................................................................................... !

2.

FACTUAL AND PROCEDURAL SUMMARY ................................................................ 2

3.

THE SOUTH PARK DEFENDANTS SHOULD BE AWARDED THEIR
REASONABLE ATTORNEYS' FEES AND COSTS ...................................................... .4
A.

The Factors Identified By The Supreme Court And The Seventh Circuit
Support An Award Of Fees And Costs To The South Park Defendants ............... ..4
1.
2.

The South Park Defendants' Fair-Use Argument Was Strong, And
Plaintiff's Legal Position Was Objectively Unreasonable........................... 6

3.

Plaintiff's Lawsuit Is Frivolous And Its Motivation Is
Questionable................................................................................................ 9

4.
B.

The South Park Defendants Obtained Complete Relief In This
Action ........................................................................................................... 5

A Fee Award Would Deter Others From Pursuing Meritless, But
Costly, Copyright-Infringement Lawsuits Against Parodists .................... 10

The South Park Defendants' Fees Are Reasonable ............................................... 11
1.

2.
4.

The Rates Charged Are Reasonable For Attorneys of Mr.
Wickers', Mr. Glasser's, Mr. Peterson's, and Ms. Gregor's
Experience And Qualifications .................................................................. 12
The Number of Hours Worked Was Reasonable ....................................... 13

CONCLUSION .................................................................................................................. 15

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TABLE OF AUTHORITIES
Page(s)
CASES

Assessment Technologies of WL LLC v. Wire Data, Inc.,
361 F.3d 434 (7th Cir. 2004) ................................................................................................. 5, 6
Blum v. Stenson,
465 u.s. 886 (1984) ........................................................................................................... 11, 12
Bond v. Blum,
317 F.3d 385 (4th Cir. 2003) ..................................................................................................... 7
Brownmark Films LLC v. Comedy Partners,
2011 U.S. Dist. LEXIS 72684 (E.D. Wis. July 6, 2011) ............................................ .!, 8, 9, 10
Campbell v. Acuff-Rose Music, Inc.,
510 u.s. 569 (1994) ................................................................................................................... 9
Claiborne v. Wisdom,
414 F.3d 715 (7th Cir. 2005) ..................................................................................................... 6
Compaq Computer Corp. v. Ergonome,
387 F.3d 403 (5th Cir. 2004) ..................................................................................................... 7
Diamond Star Building Corp. v. Freed,
30 F.3d 503 (4th Cir. 1994) ....................................................................................................... 5
Eirhart v. Libbey-Owens Ford,
996 F.2d 846 (7th Cir. 1993) .................................................................................................. .!!
Entertainment Research Group v. Genesis Creative Group,
122 F.3d 1211 (9th Cir. 1997) ................................................................................................... 6
Fogerty v. Fantasy, Inc.,
510 U.S. 517 (1994) ("Fantasy f') .................................................................................. passim
Gautreau v. Chicago Housing Authority,
491 F.3d 649 (7th Cir. 2007) .................................................................................................. .12
Gilbert v. New Line Productions,
Case No. 2:09-cv-02231-HGK-RZ (C.D. Cal. Dec. 6, 2010) ................................................. .14
Hensley v. Eckerhart,
461 u.s. 424 (1983) .................................................................................................... .3, 5, 6, 11

11

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Hojheinz v. AMC Prods.,
2003 U.S. Dist. LEXIS 16940 (E.D.N.Y. Sept. 1, 2003) ........................................................... 7
Love v. Mail on Sunday,
2007 U.S. Dist. LEXIS 97061 (C.D. Cal. Sept. 7, 2007) ......................................................... 12
Mattei v. Walking Mountain Prods.,
2004 U.S. Dist. LEXIS 12469 ......................................................................................... passim
Milton Greene Archives v. BPI Communications,
Case No. SA CV 04-635 (C.D. Cal. March 9, 2006) .............................................................. .14
Mostly Memories, Inc. v. For Your Ease Only, Inc.,
526 F .3d 1093 (7th Cir. 2008) ................................................................................................... 6
Mostly Memories, Inc. v. For Your Ease Only, Inc.,
594 F. Supp. 2d 931 (N.D. Ill. 2009) ................................................................................ .12, 14
Religious Tech. Ctr. v. Lerma,
908 F. Supp. 1362 (E.D. Va. 1995) ........................................................................................... 7
Robinson v. City ofHarvey,
48 9 F .3d 864 (7th Cir. 2007) .................................................................................................. .11
Tavoryv. NTP, Inc.,
297 Fed. App'x 986 (Fed. Cir. 2008) ......................................................................................... 7
Tillman v. New Line Cinema Corp.,
2008 U.S. Dist. LEXIS 105200,89 U.S.P.Q. 2d (BNA) 1407 (N.D. Ill. December 31,
2008) .......................................................................................................................................... 4
Transgo, Inc. v. Ajac Transmission Parts Corp.,
7 68 F .2d 1001 (9th Cir. 1985) ................................................................................................... 6
Video-Cinema Films, Inc. v. Cable News Network, Inc.,
2003 U.S. Dist. LEXIS 4887, 66 U.S.P.Q.2d (BNA) 1473 ......................................... 7, 8, 9, 10
STATUTES

17 U.S. C. § 107 ...................................................................................................................... passim
17 U.S. C. § 50 5 ........................................................................................................................ 1, 4, 6
RULES

Federal Rule 12(b)(6) ....................................................................................................................... 3
Federal Rule 54 ................................................................................................................................ 3

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CONSTITUTIONAL PROVISIONS

United States Constitution, First Amendment ..................................................................... 5, 11, 13
OTHER AUTHORITIES

The Washington Post ....................................................................................................................... 7

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1. SUMMARY OF ARGUMENT
The Copyright Act authorizes this Court to award a "reasonable attorney's fee" to the
"prevailing party" in "any civil action under this Title." 17 U.S.C. § 505. As the Court's July 6,
2011 order establishes, the South Park Defendants are the prevailing parties in this action. The
Court determined that the South Park episode in question was an "obvious" parody, concluded
that the South Park Defendants' use of Plaintiffs "What What (in the Butt)" music video was a
fair use under Section 107, and dismissed Plaintiffs copyright-infringement claim with
prejudice. Brownmark Films LLC v. Comedy Partners, 2011 U.S. Dist. LEXIS 72684 at *19,
*23 (E.D. Wis. July 6, 2011). Thus, the Court has discretion to award the South Park Defendants
their attorneys' fees and costs. 17 U.S.C. § 505.
In other fair-use cases involving obvious parodies, courts have not hesitated to grant
attorneys' fees to the prevailing defendants. For example, in Matte! v. Walking Mountain Prods.,
2004 U.S. Dist. LEXIS 12469 at *4-*8, *11, Copy. L. Rptr. (CCH) ~ 28,824 (C.D. Cal. June 24,
2004) (post-remand from Ninth Circuit), the district court awarded more than $1.6 million in
attorneys' fees and $240,000 in costs to an artist who had been sued by Mattei for copyright
infringement over his photographs of nude Barbie dolls juxtaposed with kitchen appliances. This
Court should grant the South Park Defendants' much more modest request- for $46,775.23- in
full, plus the fees incurred to prepare this fee motion and supporting memorandum oflaw. See
Exs. I, J.
Indeed, each of the relevant factors supports the issuance of a fee award. These factors
include the South Park Defendants' complete success in the action, the objective
unreasonableness of Plaintiffs claim, the frivolousness of the lawsuit, Plaintiffs questionable
motivation, and the importance of deterring similarly baseless claims in the future that threaten

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to chill parodic or other critical speech. See Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19
(1994) ("Fantasy I'). Plaintiff had every opportunity to avoid liability for the South Park
Defendants' fees. After Plaintiff first threatened to sue in 2008, the South Park Defendants sent
a lengthy letter explaining their fair-use defense. Exs. A, B. After Plaintiff filed suit in 2010, the
South Park Defendants' counsel again reminded Plaintiff that its claim was barred by Section
107. Wickers Dec!. ~ 5. Nonetheless, Plaintiff insisted on prosecuting this action, and now
should be ordered to reimburse the South Park Defendants $46,775.23 for the attorneys' fees and
costs that they incurred to defend themselves against Plaintiffs meritless claim, plus the fees
incurred to prepare this fee motion and supporting memorandum of law. 1

2. FACTUAL AND PROCEDURAL SUMMARY
In late September 2008, Plaintiff threatened a copyright-infringement lawsuit arising
from South Park's parody of the "What What (in the Butt)" ("WWITB") viral video. Ex. A. In
response, the South Park Defendants sent a detailed, seven-page letter to Plaintiffs counsel on
October 2, 2008, predicting that "a federal district court would dismiss [any] copyrightinfringement claim" because South Park's use was a fair use, "urg[ing Plaintiff] to reconsider its
threatened lawsuit," and cautioning that such "a lawsuit would expose [Plaintiff] to liability for
Comedy Central's attorneys' fees and costs." Ex. B. Plaintiffs then-counsel responded with a
one-sentence email warning that "the next time we will talk will be in the Court for the Eastern
District of Wisconsin." Ex. C.
More than two years later, Plaintiff filed its copyright-infringement lawsuit against the
South Park Defendants. During a subsequent telephone conference, counsel for the South Park

1

With their reply brief, the South Park Defendants will provide billing records evidencing the
fees incurred in preparing the fee motion, supporting memorandum of law and declarations, and
fee reply brief.
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Defendants explained to Plaintiff's new counsel that South Park's use of the WWITB video was
a fair use, and that unless Plaintiff dismissed the lawsuit voluntarily, the South Park Defendants
would move to dismiss and would seek to recover their attorneys' fees and costs. Wickers Dec!.
"j[5.
On January 24,2011, Plaintiff filed an amended complaint, again alleging that the South
Park Defendants' parody ofWWITB infringed Plaintiffs copyright in the video. Amended
Campi. (Docket No.6) "j["j[14, 15. On February 22,2010, the South Park Defendants filed their
motion to dismiss under Rule 12(b)(6) and supporting memorandum oflaw, relying primarily on
the fair-use defense. Docket No.9. On March 15, Plaintiff filed its opposition, which did not
substantively address fair use. Docket No. 16. On July 6, this Court issued its order dismissing
the lawsuit with prejudice on fair-use grounds. Docket No. 23.
Heeding the Supreme Court's admonition that "[i]deally, of course, litigants will settle
the amount of a fee," Hensley v. Eckerhart, 461 U.S. 424, 437 (1983), the South Park Defendants
offered to waive their right to seek attorneys' fees in exchange for Plaintiffs waiver of its right
to appeal this Court's order granting the motion to dismiss, and thereby to put an end to this
meritless litigation. Wickers Dec!. "j[6 and Exs. D, F. Because of the relatively short deadline
under Rule 54 to file a fee motion, the South Park Defendants asked Plaintiffs attorneys to
respond to the offer at their earliest convenience. /d. Instead of responding, however, Plaintiff
waited several days and filed a notice of appeal. Docket No. 26; Wickers Dec!. "j[8. The South
Park Defendants now move to recover their attorneys' fees and costs.

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3. THE SOUTH PARK DEFENDANTS SHOULD BE AWARDED THEIR
REASONABLE ATTORNEYS' FEES AND COSTS.
The Copyright Act grants district courts broad discretion to award attorneys' fees and
costs to prevailing parties. Section 505 provides that:

17 u.s.c.

In any civil action under this title, the court in its discretion may
allow the recovery of full costs by or against any party other than
the United States or an officer thereof. Except as otherwise
provided by this title, the court may also award a reasonable
attorney's fee to the prevailing party as part of the costs.
§ 505.

In light of the Court's order dismissing Plaintiff's lawsuit, there is no doubt that the South
Park Defendants are the prevailing parties in this lawsuit. Docket No. 23. Under the
circumstances, the South Park Defendants submit that the Court should award them their
attorneys' fees and costs in full.

A.

The Factors Identified By The Supreme Court And The Seventh Circuit Support
An Award Of Fees And Costs To The South Park Defendants.
In Fantasy I, the Supreme Court announced a list of nonexclusive factors for district

courts to consider in deciding whether to award attorneys' fees to prevailing parties in copyrightinfringement cases. 510 U.S. at 534 n.19. These factors include the prevailing party's degree of
success, the objective unreasonableness of the losing party's position (both factually and legally),
the frivolousness of that party's arguments, the plaintiff's motivation in pursuing the lawsuit, and
the need in particular circumstances to advance considerations of compensation and deterrence.
Id. To simplify this "laundry list," the Seventh Circuit has made clear that the "two most

important considerations ... are the strength of the prevailing party's case and the amount of
damages or other relief the party obtained." Tillman v. New Line Cinema Corp., 2008 U.S. Dist.

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LEXIS 105200 at *10-*11, 89 U.S.P.Q. 2d (BNA) 1407 (N.D. Ill. December 31, 2008) (quoting

Assessment Technologies of WI, LLC v. Wire Data, Inc., 361 F.3d 434,436 (7th Cir. 2004)).
The Seventh Circuit also has emphasized that where "the [plaintiff's] claim ... was
frivolous and the prevailing party obtained no relief at all, the case for awarding [defendants]

attorneys'fees is compelling." Assessment Technologies, 361 F.3d at 437 (emphasis added). In
fact, the Seventh Circuit has recognized that there is a "presumptive entitlement to an award of
attorneys' fees" where the defendant, who receives no damages award, prevails. !d. This
"presumption in favor of awarding fees is very strong. For without the prospect of such an
award, the party might be forced into a nuisance settlement or deterred altogether from enforcing
his rights." !d. (quoting Diamond Star Building Corp. v. Freed, 30 F.3d 503, 506 (4th Cir.
1994)). As the court noted in Matte!, fee recovery encourages parodists to engage in the "sort of
social criticism and parodic speech protected by the First Amendment and promoted by the
Copyright Act," and discourages copyright owners from misusing the Copyright Act to suppress
such speech. 2004 U.S. Dist. LEXIS 12469 at *4-*5.
The factors outlined in Fantasy I and refined in Assessment Technologies point to one
result in this case: the South Park Defendants should be awarded their attorneys' fees and costs.

1.

The South Park Defendants Obtained Complete Relief In This Action.

The first factor, the amount ofrelief obtained, echoes the Supreme Court's earlier
observation that "[t]he most critical factor [for a court evaluating a statutory fee request] is the
degree of success obtained" by the moving party. Hensley, 461 U.S. at 433. In Hensley, the
Supreme Court declared that where a party "has obtained excellent results, his attorney should

recover a fully compensatory fee. Normally, this will encompass all hours reasonably expended

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on the litigation, and indeed in some cases of exceptional success an enhanced award may be
justified." Hensley, 461 U.S. at 435 (emphasis added). 2
The rationale for awarding fees to a prevailing copyright defendant is simple: courts
should discourage plaintiffs from using the cost of litigation to coerce settlements from
defendants with solid factual and legal defenses. Assessment Technologies, 361 F.3d at 436-447.
The Seventh Circuit has stated that "[t]here is no question that a dismissal with prejudice makes
the defendant the prevailing party for purposes of an award of attorney's fees under§ 505."
Mostly Memories, Inc. v. For Your Ease Only, Inc., 526 F.3d 1093, 1099 (7th Cir. 2008) (citing
Claiborne v. Wisdom, 414 F.3d 715,719 (7th Cir. 2005)).
Here, the South Park Defendants secured a complete victory when the Court granted their
motion to dismiss Plaintiffs lawsuit with prejudice, making the South Park Defendants
prevailing parties who are presumptively entitled to a fee award under Section 505. Because the
South Park Defendants did not obtain any financial relief, their entitlement to recover fees is
particularly "compelling." Assessment Technologies, 361 F.3d at 437.

2.

The South Park Defendants' Fair-Use Argument Was Strong, And Plaintiff's
Legal Position Was Objectively Unreasonable.

The second factor, the strength of the South Park Defendants' fair-use argument, also
favors an award of fees and costs. In evaluating the strength of the fair-use defense and whether
the plaintiffs lawsuit was objectively unreasonable, the Court again must consider the four
statutory fair-use factors to determine whether the defense advanced "the purposes of the
Copyright Act." Matte!, 2004 U.S. Dist. LEXIS 12469 at *3; 17 U.S.C. § 107. Courts regularly
2

Hensley, which construed a prevailing-party fee-recovery statute materially identical to Section
505 of the Copyright Act, has been cited with approval in copyright cases. See, e.g.,
Entertainment Research Group v. Genesis Creative Group, 122 F.3d 1211, 1230-1232 (9th Cir.
1997); Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1027 (9th Cir. 1985).

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have found that where the weight of the Section 107 factors obviously favors fair use, the
defendants should be awarded their fees and costs. 3
For the first fair-use factor, where the "parodic character of [the d]efendant[s]' work is
reasonably perceived," the "purpose and character" of the use favors not only a fair-use finding,
but also an award of attorneys' fees. Matte!, 2004 U.S. Dist. LEXIS 12469 at *4 (granting fee
motion and commenting that "the parodic character of [the] [d]efendant' s work was clear"
because "[i]t is not difficult to see the commentary that [the defendant] intended or the harm that
he perceived in Barbie's influence on gender roles and the position of women in society").
This Court likewise determined that the parodic nature of South Park's use was readily
apparent. As the Court stated:
One only needs to take a fleeting glance at the South Park episode to gather the 'purpose
and character' of the use of the WWITB video in the episode in question. The defendants
used parts of the WWITB video to lampoon the recent craze in our society of watching
video clips on the internet that are- to be kind- of rather low artistic sophistication and
quality. The South Park episode 'transforms' the original piece by doing the seemingly
impossible -making the WWITB video even more absurd by replacing the African
American male singer with a naive and innocent nine-year-old boy dressed in adorable
outfits. The episode then showcases the inanity of the 'viral video' craze, by having the
South Park fourth graders' version of the WWWITB video 'go viral,' seemingly the
natural consequence of merely posting a video on the internet. More broadly, the South
Park episode, with its use of the WWITB video, becomes a means to comment on the
3

See, e.g., Compaq Computer Corp. v. Ergonome, 387 F.3d 403,411-412 (5th Cir. 2004)
(affirming award of $2.7 million in attorneys' fees based on fair-use defense in case arising from
use of illustrations in instruction book on avoiding hand injuries); Bond v. Blum, 317 F.3d 385,
398 (4th Cir. 2003) (affirming award of attorneys' fees to defendant who prevailed on fair-use
grounds, and stating that plaintiff and others like him "should be deterred from bringing
meritless actions"); Video-Cinema Films, Inc. v. Cable News Network, Inc., 2003 U.S. Dist.
LEXIS 4887 at *12-*17, 66 U.S.P.Q.2d (BNA) 1473, 31 MediaL. Rptr. 1634 (S.D.N.Y. March
31, 2003) (fees appropriate where fair-use factors plainly favored CNN and other networks that
had used footage from G.l Joe movie in reports on actor's death); Religious Tech. Ctr. v. Lerma,
908 F. Supp. 1362, 1367-1368 (E.D. Va. 1995) (awarding fees to The Washington Post, which
had successfully defended copyright-infringement action brought by arm of Church of
Scientology on fair-use grounds); Tavory v. NTP, Inc., 297 Fed. App'x 986, 991 (Fed. Cir.
2008); Hojheinz v. AMC Prods., 2003 U.S. Dist. LEXIS 16940 at *16-*21 (E.D.N.Y. Sept. 1,
2003).
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ultimate value of viral YouTube clips, as the main characters discover that while society
is willing to watch absurd video clips on the internet, our society simultaneously assigns
little monetary value to such works. Tile South Park 'take' on tile WWITB video is
truly transformative, in til at it takes tile original work and uses parts of tile video to not
only poke fun at tile original, but also to comment on a bizarre social trend, solidifying
tile work as a classic parody.

Brownmark, 2011 U.S. Dist. LEXIS 72684 at *23 (emphasis added). Thus, the first fair-use
factor weighs heavily in favor of a fee award.
The third fair-use factor4 also underscores the strength of the South Park Defendants'
position. In Video-Cinema Films, one of the factors that favored an award of attorneys' fees was
the plaintiffs unfounded claim that the defendants' use of clips from the film G.l Joe in a
television news report about the death of the film's lead actor took the "heart" of the film. 2003
U.S. Dist. LEXIS 4887 at *10 (S.D.N.Y. March 30, 2003). The court found that the plaintiffs
position was "objectively unreasonable" because the amount taken was "reasonable in relation to
the purpose of the copying." !d. See also Matte!, 2004 U.S. Dist. LEXIS 12469, at *5 (Mattei's
claim that the defendant-artist took more than was necessary ofthe Barbie doll to comment on
Barbie's perceived negative social influence was "completely without merit and would lead to
absurd results," and favored a fee award to the defendant).
In its July 6 order, this Court found that the South Park Defendants' use of the WWITB
video was "relatively insubstantial"- a "cartoon of a nine year old boy repeating just enough
lines [of] WWITB to conjure up the original work." Brownmark, 2011 U.S. Dist. LEXIS 72684

4

In Matte!, the court followed the authority noting that the second fair-use factor, the nature of
the use (whether it was creative or factual), is not important in a parody case. 2004 U.S. Dist.
LEXIS 12469 at *5. Just as the "[p]laintiff [in Matte!] would have been objectively
unreasonable to rely upon" the second factor in bringing a copyright-infringement lawsuit that
did not satisfy any of the other factors, here it would be objectively unreasonable for Brownmark
to rely upon the second factor in bringing this lawsuit against the South Park Defendants, as this
Court has recognized. See Brownmark, 2011 U.S. Dist. LEXIS 72684, at *25 ("the 'nature' of
the copyrighted work factor is not particularly helpful to the court" because "parodies almost
invariably copy publicly known, expressive works").
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at *25 (emphasis in original). As in Video-Cinema and Mattei, this finding confirms that
Plaintiffs lawsuit was objectively umeasonable and favors an award of attorneys' fees.
The fourth fair-use factor also unquestionably supports a fee award. As this Court
recognized, "there is little risk the derivative work in question [the South Park episode] would
somehow usurp the market demand for the original: the South Park episode lampoons viral
video crazes, while the WWITB video is the epitome of a clip that fuels such crazes."
Brownmark, 2011 U.S. Dist. LEXIS 72684 at *26 (quoting Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569, 592 (1994) ("there is no protectable market for criticism")). See also Mattei, 2004
U.S. Dist. LEXIS 12469 at *6 (same). 5 Plaintiff's position is especially umeasonable given that
the WWITB video has been viewed more than 37 million times on the Internet, including
millions of times after the South Park episode ran. See South Park Defendants' Memo. of Law
in Support of Motion to Dismiss (Docket No. 9) at 1.
Because the fair-use factors overwhelmingly support the Court's finding that the South
Park episode was a protected parody, the South Park Defendants have established the strength of
their defense and the objective umeasonableness of Plaintiffs legal position, both of which
support an award of attorneys' fees.

3.

PlaintifPs Lawsuit Is Frivolous And Its Motivation Is Questionable.

The other Fantasy I factors also favor a fee award. In Mattei, the court held that a
copyright-infringement claim is frivolous if it is not "in an unsettled area of the law" and it "had
little likelihood of success." 2004 U.S. Dist. LEXIS 12649 at *6-*7. Here, the protections for
5

As the court recognized in Video-Cinema Films, a copyright plaintiff cannot claim that the
defendant's use of the work deprived the plaintiff of a market to license its clips to others for fair
uses such as news reporting (or, in this case, parodies), because such a rule "would eviscerate the
affirmative defense of fair use since every copyright infringer seeking the protection of the fair
use doctrine could have potentially sought a license from the owner of the infringed work."
2003 U.S. Dist. LEXIS 4887 at * 12 (internal citations omitted).

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parody are well-established, as demonstrated by the cases relied on by the South Park
Defendants in the motion to dismiss. See cases discussed in South Park Defendants' Memo. of
Law in Support of Motion to Dismiss (Docket No.9) at 10-21. That is why this Court noted that
there was a "rather obvious resolution" of the South Park Defendants' fair-use defense.

Brownmark, 2011 U.S. Dist. LEXIS 72684 at *19 (emphasis added).
Plaintiff's motivation for this lawsuit is similarly questionable. In Video-Cinema Films,
the court suggested that the "[p]laintiff's conduct was nothing more than an obvious effort to use
the Copyright Act to secure payment from [the d]efendants for their fair use of the film footage."
2003 U.S. Dist. LEXIS 4887 at* 15. The same could be said of Plaintiffs lawsuit against the
South Park Defendants, which Plaintiff pursued more than two years after being put on notice of
the South Park Defendants' strong fair-use defense. Ex. B. In fact, this Court pointed out that
despite "opportunities to resolve rather glaring problems with the substance of the underlying
dispute, the plaintiff has looked elsewhere and instead filed briefs that wholly ignored the

central issue of this litigation, fair use. Such behavior is indicative of the efficacy of this
litigation, which rightfully ends now." Brownmark, 2011 U.S. Dist. LEXIS 72684 at *27
(emphasis added).

4.

A Fee Award Would Deter Others From Pursuing Meritless, But Costly,
Copyright-Infringement Lawsuits Against Parodists.

As the Supreme Court has made clear, "it is peculiarly important that the boundaries of
copyright law be demarcated as clearly as possible. To that end, defendants who seek to advance
a variety of meritorious copyright defenses should be encouraged to litigate them to the same
extent that plaintiffs are encouraged to litigate meritorious claims of infringement." Fantasy I,
510 U.S at 527. That policy applies with particular force to defendant-parodists who incur

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attorneys' fees and costs to vindicate fair-use rights. See Matte!, 2004 U.S. Dist. LEXIS 12469
at *4-*5.
Plaintiffs lawsuit contravened the intent of the Copyright Act by seeking to suppress
social criticism and parodic speech that was entitled to full protection under the First
Amendment and Section 107. "[T]his is just the sort of situation in which the Court should
award attorneys' fees to deter this type oflitigation." Matte!, 2004 U.S. Dist. LEXIS 12469 at
*7.

B.

The South Park Defendants' Fees Are Reasonable.
Through the end of June 2011, the South Park Defendants incurred $46,775.23 in

attorneys' fees and costs to defeat Plaintiffs lawsuit: $36,919.06 by Davis Wright Tremaine and
$9,856.17 by Godfrey & Kahn. Exs. I, J. This amount includes the costs of responding to
Plaintiffs initial cease-and-desist letter in late 2008 and defending against this lawsuit. The
South Park Defendants will supplement this amount with the fees and costs incurred in preparing
this fee motion and reply when they file their reply brief. See, e.g., Eirhart v. Libbey-Owens

Ford, 996 F.2d 846, 851 (7th Cir. 1993) (compensable fees include fees incurred for fee motion
and fee reply). The South Park Defendants respectfully request that the Court award these fees
and costs in full.
The usual starting point for determining the amount of a reasonable fee award is the
"lodestar" - "the number of hours reasonably expended on the litigation multiplied by a
reasonable hourly rate." Hensley, 461 U.S. at 433; Robinson v. City ofHarvey, 489 F.3d 864,
871 (7th Cir. 2007). "When ... the applicant for a fee has carried his burden of showing that the
claimed rate and number of hours are reasonable, the resulting product is presumed to be the
reasonable fee" to which counsel is entitled. Blum v. Stenson, 465 U.S. 886, 897 (1984).

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Exhibits I and J detail the time spent by the South Park Defendants' counsel in this case.
These exhibits consist of Davis Wright Tremaine's and Godfrey & Kahn's billing statements,
which identify each task for which the South Park Defendants seek reimbursement, the attorney
or paralegal who performed the task and his or her billing rate, and the amount of time expended
on each task. These billing statements either have been paid by MTV Networks or represent
outstanding obligations ofMTV Networks. Wickers Dec!.~ II.

1.

The Rates Charged Are Reasonable For Attorneys of Mr. Wickers', Mr.
Glasser's, Mr. Peterson's, and Ms. Gregor's Experience And Qualifications.

Reasonable hourly rates are calculated according to the prevailing market rates in the
relevant community. See Blum, 465 U.S. at 895; Gautreau v. Chicago Housing Authority, 491
F.3d 649, 659 (7th Cir. 2007). On remand from the Seventh Circuit, the court in Mostly

Memories, Inc. v. For Your Ease Only, Inc., 594 F. Supp. 2d 931,933-934 (N.D. Ill. 2009),
found that the rates charged for partners from an out-of-state law firm that represented the
prevailing defendants in that copyright-infringement action- $500 per hour in 2005 and $525 in
2006- were reasonable. See also id. (granting the prevailing defendants' $592,729 in fees and
$66,340 in costs). Likewise, in Love v. Mail on Sunday, 2007 U.S. Dist. LEXIS 97061 at *25
(C.D. Cal. Sept. 7, 2007), the district court awarded attorneys' fees to the prevailing defendants
in a copyright lawsuit based on hourly billing rates of between $305 and $690, depending on the
individual attorney's years of experience. The court found that "[t]hese rates are consistent with
the rates typically charged by other highly-regarded southern California law firms for similar
work by attorneys of comparable experience." !d.
In 2010 and 2011, Mr. Wickers, who was admitted to practice in 1993, and Mr. Glasser,
who was admitted to practice in 2007, billed the South Park Defendants at significantly

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discounted hourly rates of$416.50 and $225.25, respectively. Wickers Dec!.~ 11 and Ex. I. Mr.
Peterson and Ms. Gregor billed the South Park Defendants at discounted hourly rates of $382.50
and $293.25, respectively. Peterson Dec!.~ 3 and Ex. J.
These rates are fully justified by the attorneys' qualifications, and are consistent with
rates charged by attorneys with similar qualifications at other firms. See Wickers Dec!.

~

10.

Mr. Wickers has been a partner in Davis Wright Tremaine's Los Angeles office since 2000,
specializes in representing television networks and other media companies in copyright,
trademark, and First Amendment matters, and has been recognized as a leading litigator in these
fields. !d. and Ex. H. Mr. Glasser is a 2007 graduate of the University of California, Berkeley
School of Law, who has specialized in intellectual-property and First Amendment litigation
throughout his nearly four-year tenure at Davis Wright Tremaine. !d. and Ex. G. Mr. Peterson
has practiced intellectual-property law in Wisconsin since 1998, and has taught as an adjunct
faculty member at the University of Wisconsin Law School. Peterson Dec!. ~ 2. Ms. Gregor,
who was admitted to the bar in 2005, also has significant experience in copyright litigation. !d.

2.

The Number of Hours Worked Was Reasonable.

The South Park Defendants' primary law firm staffed this matter efficiently, with one
partner and one associate. 6 Together, Mr. Wickers and Mr. Glasser have billed a total of 118.8
hours on this matter- 39 hours by Mr. Wickers and 79.8 hours by Mr. Glasser. Wickers

Dec!.~

11 and Ex. I. These hours were reasonably necessary to analyze Plaintiff's allegations, to draft
the South Park Defendants' motion to dismiss and reply, to prepare this fee motion, and to
handle the day-to-day management of the case. !d. In addition, attorneys from Godfrey & Kalm
6

The Davis Wright Tremaine associate who worked with Mr. Wickers in responding to
Plaintiff's 2008 cease-and-desist letter, Robyn Aronson, was hired away in 2010 by MTV
Networks/Comedy Central. Wickers Dec!. ~ 10. Thus, Mr. Glasser was tapped to work on the
case with Mr. Wickers when the lawsuit was filed in late 2010.
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billed 19.3 hours to the matter, lending their experience and expertise litigating in this Court and
in the Seventh Circuit. Peterson Dec!. 'l)'l)2-3 and Ex. J.
The total1egal fees incurred by the South Park Defendants to date are $46,775.23,
including fees incurred in responding to the 2008 cease-and-desist letter. Wickers Dec!. 'l)12 and
Exs. I -J. That amount is easily within the range of- and in many cases significantly less thanthe fee awards to prevailing defendants in other copyright actions in this Circuit and elsewhere.

See, e.g., Mostly Memories, 594 F. Supp. 2d at 933-934 (granting the prevailing defendants'
$592,729 in fees and $66,340 in costs). See also Gilbert v. New Line Productions, Case No.
2:09-cv-02231-HGK-RZ (C.D. Cal. Dec. 6, 201 0) (awarding prevailing defendants over
$800,000 in attorneys' fees in copyright action); Milton Greene Archives v. BPI

Communications, Case No. SA CV 04-635 (C.D. Cal. March 9, 2006) (awarding prevailing
defendants over $765,000 in attorneys' fees in copyright action); Matte!, 2004 U.S. Dist. LEXIS
12469 at *11 (awarding prevailing defendants $1.6 million in fees and $240,000 in costs in
copyright action).

Ill
Ill
Ill

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4. CONCLUSION
Plaintiff never should have filed this lawsuit, and had multiple opportunities to avoid
liability for the South Park Defendants' fees. But Plaintiff insisted on pursuing this lawsuit and
putting the South Park Defendants to the burden and expense of vindicating their fair-use rights.
Under these circumstances, the Court should grant this motion and award the South Park
Defendants $46,775.23, plus any fees associated with their fee motion and fee reply brief.

DATED: July 20, 2011

DAVIS WRIGHT TREMAINE LLP
ALONZO WICKERS IV
California State Bar No. 169454
JEFF GLASSER
California State Bar No. 252596
By:/s/ 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, 2011, 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 17644965vl3970094·000069

Is/ Alonzo Wickers IV
Alonzo Wickers IV