Free Response in Opposition to Motion - District Court of Arizona - Arizona

APPENDIX c Q
Case 2:04-cv-00408-SIVIIVI Document 103-13 Filed 12/18/2006 _ Page 1 012 l

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` Not Reported in F.Supp. Page 1
Not Reported in F.Supp., 1995 WL 29488 (S.D.N.Y.), 34 U.S.P.Q.2d 1319 -
(Cite as: Not Reported in F.Supp.)
Q `H damages at the time of the trial of this action was, at .
Briefs and Other Related Documents best, speculative and remote and relying on an
T CK Co. v. Burger King Corp.S.D.N.Y.,1995. expert opinion premised on pure speculation and
T United States District Court,S.D. New York. was unreasonable."); Woods at 400 ("... Bourne
CK COMPANY, Plaintiff was objectively unreasonable, both in fact and law,
V. in asserting that every publication of sheet music_
BURGER KING CORPORATION and Saatchi& after tl1e original ‘lead sheet’ was a ‘derivative
Q Saatchi Advertising, inc., Defendant. work’, since this was neither so regarded by the
g N0. 92 Civ 1488 (CSH). trade, whose realities make the argument specious,
and no printed or performed version of the song
Jan. 26, 1995. before me had sufficient creativity to be _
classified a ‘derivative’ work.") (footnotes omitted)
- MEMORANDUM AND ORDER Plaintiff at bar suffered summary judgment because
i HAIGHT, District Judge: this Court concluded that there were no close
*1 Plaintiffs motion for reargument of the Court's similarities between protectable elements of the
September 29, 1994 Order and Opinion granting works. Brit I am not prepared to say that plaintiffs
defendants' motion for summary judgment is denied. contrary arguments were objectively unreasonable.
g l To hold otherwise would establish a per se
Defendants, clearly the prevailing parties in this entitlement to attomey's fees whenever those issues
` copyright action, cross-move for costs including are resolved against a copyright plaintiff I do not
E attorney's fees under section 505 of the Copyright thinkthat is a correct construction ofthe law. .
Act, 17 U.S.C. § 505. Prevailing plaintiffs and -
defendants are to be given even-handed treatment in Both motions are denied. SO ORDERED.
the awarding or denial of attomey's fees under the _
3 _ statute. Fogerty v. Fantasy, Inc., 114 S.Ct. 1023 S.D.N.Y.,l995.
- ` (1994). Two judges in this district have held that CK Co. v. Burger King Corp.
§ _ objectively unreasonable litigation conduct is Not Reported in F.Supp., 1995 WL 29488
- sufficient to subject a party to an award of attorney's (S.D.N.Y.), 34 U.S.P.Q.2d 1319
. fees under § 505. Screenl& Establishment v. .
l Tower Video, Inc., 868 F.Supp. 47 (S.D.N.Y.1994) Briefs and Other Related Documents (Back to top) _
_ . . (Sotomayor, J.); Woods v. Bourne Co., 858 F.Supp.
` 399 (S.D.N.Y.1994) (Owen, J.). I agree with them. · l:92cv01488 (Docket) (Mar. 02, 1992)
However, I decline to make an award of att0rney's END OF DOCUMENT
. fees on the facts of the case at bar. While plaintiff .
failed to sustain its position, not all unsuccessful
I litigated claims are objectively unreasonable. The _
infinnity of the claim, while falling short of
branding it as nivolous or harassing, must
_ nonetheless be pronounced. That is demonstrated
by the language Judges Sotomayor and Owen used
· in awarding attorncy's fees in the cited cases. See
Screerilyfe at 52 ("Thus, Screen1ife's claim for actual K
© 2006 Thomson!W est. No Claim to Orig. U.S. Govt. Works.
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Case 2:04-cv-00408-SMM

Document 103-13

Filed 12/18/2006

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Case 2:04-cv-00408-SMM

Document 103-13

Filed 12/18/2006

Page 2 of 2