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.

[PROPOSED] ORDER GRANTING DEFENDANTS' MOTION TO RECOVER
ATTORNEYS' FEES AND COSTS

After considering the Motion to Recover Attorneys' Fees And Costs submitted by
defendants Comedy Partners, MTV Networks, Paramount Home Entertainment Inc., South Park
Digital Studios LLC, and Viacom International Inc. (collectively "the South Park Defendants"),
and good cause appearing therefor, the Court, pursuant to 17 U.S.C. § 505 and Rule 54(d) of the
Federal Rules of Civil Procedure, HEREBY ORDERS:
1.

This Court exercises its discretion to award the South Park Defendants, the

prevailing parties in this action, reasonable attorneys' fees and costs. The South Park Defendants
obtained a complete victory when this Court granted their motion to dismiss on fair-use grounds,
making the South Park Defendants presumptively entitled to a few award under Section 505.
The fair-use defense set forth by the South Park Defendants was strong, as the parodic purpose
and character of the use of parts of the "What What (In The Butt)" ("WWITB") video was

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obvious. The other important factors also weigh in favor of fair use, as the South Park episode
used a relatively insubstantial portion of the WWITB video in the parody, and there is little risk
of the South Park parody usurping market demand for the original WWITB video. Because the
success of the South Park Defendants and the strength of their fair-use defense easily support a
reasonable award of attorneys' fees and costs (see Assessment Technologies of WI, LLC v. Wire

Data, Inc., 361 F.3d 434, 436 (7th Cir. 2004)), the South Park Defendants are entitled to recover
their reasonable attorneys' fees and costs in defending against this action.
2.

The South Park Defendants have established that their attorneys' fees and costs

requests are reasonable. Accordingly, The South Park Defendants are entitled to recover from
PlaintiffBrownmark Films LLC $46,775.23 in attorneys' fees and costs, plus the attorneys' fees
and costs of $_ _ _ that the South Park Defendants incurred in preparing their fee motion and
fee reply (that the South Park Defendants will establish they incurred in their fee reply brief).
IT IS SO ORDERED.
Dated: _ _ _ _ _ _ __
Judge Joseph Peter Stadtmueller
United States District Court

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Respectfully submitted,

DATED: July 20, 2011

DAVIS WRIGHT TREMAINE LLP
ALONZO WICKERS IV (of counsel)
California State Bar No. 169454
JEFF GLASSER (of counsel)
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.

Is/ Alonzo Wickers IV
Alonzo Wickers IV