United States District Court, D. Connecticut
ORDER ON DEFENDANTS' JOINT MOTION FOR
ATTORNEY'S FEES AND COSTS
JEFFREY ALKER MEYER UNITED STATES DISTRICT JUDGE.
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unpublished manuscript about the submarine.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infringed upon his copyright of the unpublished manuscript.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.
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.
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.
Fees Pursuant to 17 U.S.C. § 505
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).
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.
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.
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.
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.
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. Accordingly, nothing about
the expert's report moves the needle on the objective
reasonableness of plaintiff's infringement claim.
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 ...