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Leary v. Manstan

United States District Court, D. Connecticut

March 27, 2018

JOSEPH LEARY, Plaintiff,
v.
ROY MANSTAN, et al., Defendants.

          ORDER ON DEFENDANTS' JOINT MOTION FOR ATTORNEY'S FEES AND COSTS

          JEFFREY ALKER MEYER UNITED STATES DISTRICT JUDGE.

         This is a copyright infringement action brought by plaintiff Joseph Leary against defendants Roy Manstan, Frederic Frese, and Westholme Publishing, LLC. Plaintiff and the individual defendants share an interest in the Revolutionary War-era submarine built by David Bushnell known as the “Turtle.” Plaintiff is the copyright owner of an unpublished manuscript about the submarine. Plaintiff brought this action against defendants alleging that a book later written by Manstan and Frese and published by Westholme, LLC infringed upon his copyright of the unpublished manuscript. On July 15, 2015, the Court granted summary judgment in favor of defendants, dismissing plaintiff's claims. Defendants have moved for an award of attorney's fees pursuant to 17 U.S.C. § 505 and for an award of sanctions against plaintiff's counsel pursuant to the Court's inherent power and 28 U.S.C. § 1927. I will grant defendants' motion for attorney's fees and costs, but I will deny their motion for sanctions against plaintiff's counsel.

         Background

         The lengthy procedural history of this nearly five-year-old case is set forth more fully in the Court's earlier rulings on the parties' numerous motions filed in this case. See Leary v. Manstan, 118 F.Supp.3d 460 (D. Conn. 2015); Leary v. Manstan, 2015 WL 521497 (D. Conn. 2015). The Court presumes the parties' familiarity with the procedural and factual background of the case.

         After the Court granted summary judgment in favor of defendants on all of plaintiff's claims, defendants timely filed a motion for attorney's fees and costs and for sanctions against plaintiff's counsel. Doc. #73. On February 7, 2017, I denied defendants' motion without prejudice because defendants did not supply any of the supporting records necessary for the Court to determine a reasonable award. Doc. #99 at 2. Defendants have now timely renewed their motion for attorney's fees and costs under 17 U.S.C. § 505 and sanctions against plaintiff's counsel pursuant to the Court's inherent power and 28 U.S.C. § 1927.

         Discussion

         Attorney's Fees Pursuant to 17 U.S.C. § 505

         Federal law provides that in a copyright action “the court in its discretion may allow the recovery of full costs by or against any party, ” and “the court may also award a reasonable attorney's fee to the prevailing party as part of the costs.” 17 U.S.C. § 505. The Supreme Court has observed that the statute “clearly connotes discretion, ” and does not prescribe any “precise rule or formula for awarding fees.” Kirtsaeng v. John Wiley & Sons, Inc., 136 S.Ct. 1979, 1985 (2016) (internal quotation marks omitted).

         While the statute gives district courts “broad leeway” in rendering fee award decisions, the Supreme Court has noted with approval several nonexclusive factors to inform a fee-shifting decision: “frivolousness, motivation, objective unreasonableness[, ] and the need in particular circumstances to advance considerations of compensation and deterrence.” Ibid. “Of these factors, ‘objective reasonableness . . . should be given substantial weight in determining whether an award of attorney['s] fees is warranted' because ‘the imposition of a fee award against a copyright holder with an objectively reasonable litigation position will generally not promote the purposes of the Copyright Act.'” Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95, 108 (2d Cir. 2014) (quoting Matthew Bender & Co. v. W. Pub. Co., 240 F.3d 116, 122 (2d Cir. 2001)). Nevertheless, in weighing the relevant factors, I must be mindful not to construe “substantial weight” to mean dispositive weight. See Kirtsaeng, 136 S.Ct. at 1989. In other words, I must consider all of the relevant factors, beyond simply the reasonableness of a party's litigation position. Ibid. In light of these factors, I conclude that an award of attorney's fees and costs is warranted in this case.

         First, plaintiff's claims were objectively unreasonable. The mere fact that summary judgment was granted in favor of defendants in this case does not necessarily mean plaintiff's position was objectively unreasonable. See Earth Flag Ltd. v. Alamo Flag Co., 154 F.Supp.2d 663, 666 (S.D.N.Y. 2001). An objectively unreasonable claim is one that altogether lacks any legal or factual support. See Viva Video, Inc. v. Cabrera, 9 F. App'x 77, 80 (2d Cir. 2001). Plaintiff's claim, indeed, lacked any reasonable factual or legal support.

         As I noted in my summary judgment ruling, copyright protection for non-fictional narratives is quite “thin.” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349 (1991). It has long been the rule that “the scope of copyright protection in historical accounts is narrow indeed, embracing no more than the author's original expression of particular facts and theories already in the public domain, ” and that “absent wholesale usurpation of another's expression, claims of copyright infringement where works of history are at issue are rarely successful.” Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 974 (2d Cir. 1980). In this case, there is no dispute that defendants' book did not copy plaintiff's work or even closely paraphrase any portion of it. There was obviously no “wholesale usurpation” of plaintiff's expression. Plaintiff's claim was almost self-evidently doomed from the start.

         The works were dissimilar in a number of other aspects. As I previously observed, “the respective works have obviously differing focuses and approach the material from different angles.” Leary, 118 F.Supp.3d at 468. Defendants' work was largely a technical discussion of the design and construction of the “Turtle, ” with historical information about Bushnell and his era peppered in for context. Ibid. Plaintiff's work, on the other hand, was principally a historical narrative. Additionally, defendants' work employed a “markedly” different structure than plaintiff's copyrighted work, serving largely as a technical manual, whereas plaintiff's work was in narrative form. Id. at 469. Other claimed similarities between the two works were plainly not protectable-including plaintiff's allegedly original hypothesis about Isaac Doolittle assisting Bushnell in building the “Turtle, ” the use of the “flash-forward” and “flash-back” narrative device, and recitation of what little historical information is available about Bushnell.

         Plaintiff relies on the fact that his expert concluded that plaintiff's work had been copied. But, as I noted in my summary judgment ruling, expert testimony in infringement cases is largely “irrelevant” to the question of whether a copyright has been infringed. Leary, 118 F.Supp.3d at 465 n.5 (quoting Laureyssens v. Idea Grp., Inc., 964 F.2d 131, 140 (2d Cir. 1992)). A copyright claim may be objectively unreasonable and be subject to an award of fees notwithstanding expert testimony that may support the claim. See, e.g., Muller v. Twentieth Century Fox Film Corp., 2011 WL 3678712, at *3 (S.D.N.Y. 2011) (Chin, J.) (awarding fees); Muller v. Twentieth Century Fox Film Corp., 794 F.Supp.2d 429, 443 (S.D.N.Y. 2011) (Chin, J.) (discussing plaintiff's expert testimony), aff'd sub nom. Muller v. Anderson, 501 F. App'x 81 (2d Cir. 2012). Here, plaintiff's expert conceded little knowledge of copyright law, but boasted a professional understanding of plagiarism. See Doc. #41-12 at 35-40. Plagiarism is, of course, distinct from copyright infringement.[1] Accordingly, nothing about the expert's report moves the needle on the objective reasonableness of plaintiff's infringement claim.

         Plaintiff next argues that his infringement claim is not objectively unreasonable because his claim tests an unsettled area of copyright law. Plaintiff cites two cases-Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985), and Wainwright Sec., Inc. v. Wall St. Transcript Corp., 558 F.2d 91 (2d Cir. 1977)-as evidence that the law is unsettled as to what constitutes protectable elements of unpublished copyrighted work. Doc. #110 at 16-17. But these cases were not even cited in plaintiff's opposition memorandum to defendants' summary judgment motion and were cited by plaintiff for the first time at oral argument on the motion. Moreover, these cases pertain to the breadth of the fair use doctrine as applied to unpublished works. Nothing about ...


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