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Summary Order 14-3367-cv; 15-1573 Effie Film, LLC v. Murphy UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 16th day of October, two thousand fifteen. 5 6 PRESENT: DENNIS JACOBS, 7 RAYMOND J. LOHIER, JR., 8 Circuit Judges, 9 GEOFFREY W. CRAWFORD,* 10 District Judge. 11 12 - - - - - - - - - - - - - - - - - - - -X 13 EFFIE FILM, LLC, 14 Plaintiff-Appellee, 15 16 -v.- 14-3367-cv; 15-1573-cv 17 18 GREGORY MURPHY, 19 Defendant-Appellant. 20 - - - - - - - - - - - - - - - - - - - -X 21 22 FOR APPELLANT: Gregory Murphy, pro se, New 23 York, N.Y. * Judge Geoffrey W. Crawford, of the United States District Court for the District of Vermont, sitting by designation. 1 1 2 FOR APPELLEE: Andrew C. Nichols and 3 Christopher E. Mills, Winston & 4 Strawn LLP, Washington, D.C., 5 Linda T. Coberly, Winston & 6 Strawn LLP, Chicago, IL. 7 8 Appeal from an order of the United States District 9 Court for the Southern District of New York (Griesa, J.). 10 11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 12 AND DECREED that Appellee’s motion to dismiss be DENIED and 13 the order of the district court awarding attorney’s fees be 14 REVERSED. The appeal from the imposition of an appeal bond, 15 docketed under 15-1573, is DISMISSED as moot. 16 17 Gregory Murphy, pro se, appeals from the order of the 18 United States District Court for the Southern District of 19 New York (Griesa, J.), awarding costs and attorney’s fees in 20 the amount of $499,068.70 to plaintiff Effie Film, LLC 21 (“Effie Film”). We assume the parties’ familiarity with the 22 underlying facts, the procedural history, and the issues 23 presented for review. 24 25 This appeal arises out of a copyright dispute between 26 Murphy, the author of a stage play and a screenplay (both 27 titled The Countess), and Effie Film, which produced the 28 film Effie Gray based on the screenplay Effie. The Countess 29 and Effie are both fictionalized accounts about the marriage 30 of Effie Gray to art critic John Ruskin, which led to a 31 famous Victorian scandal. Effie Film sued Murphy for a 32 declaratory judgment that Effie did not infringe on The 33 Countess. In its opinion on the merits, the district court 34 granted judgment in favor of Effie Film on the ground that 35 the protectable elements of The Countess were not 36 substantially similar to Effie. Effie Film, LLC v. Murphy 37 (“Effie I”), 932 F. Supp. 2d 538, 560 (S.D.N.Y. 2013).1 We 38 affirmed. Effie Film, LLC v. Murphy (“Effie II”), 564 F. 39 App’x 631 (2d Cir. 2014) (summary order). 40 1 The film Effie Gray had not yet been released at the time of the district court’s decision. The court held that the film would not be infringing if it adhered to the non-infringing version of the screenplay Effie. Effie I, 932 F. Supp. 2d at 560. 2 1 The district court then awarded costs and attorney’s 2 fees to Effie Film in the amount of $499,068.70. Under the 3 Copyright Act, a court “in its discretion may allow the 4 recovery of full costs” and “may also award a reasonable 5 attorney’s fee to the prevailing party as part of the 6 costs.” 17 U.S.C. § 505. “When determining whether to 7 award attorneys fees, district courts may consider such 8 factors as (1) the frivolousness of the non-prevailing 9 party’s claims or defenses; (2) the party’s motivation; (3) 10 whether the claims or defenses were objectively 11 unreasonable; and (4) compensation and deterrence.” Bryant 12 v. Media Right Prods., Inc., 603 F.3d 135, 144 (2d Cir. 13 2010). “The third factor—objective unreasonableness—should 14 be given substantial weight.” Id. We review an award of 15 attorney’s fees under § 505 for abuse of discretion but the 16 fees must be “reasonable in terms of the circumstances of 17 the particular case.” Matthew Bender & Co. v. W. Pub. Co., 18 240 F.3d 116, 121 (2d Cir. 2001) (internal quotation marks 19 omitted). 20 21 1. The district court ruled that the “objective 22 unreasonableness” standard was “easily satisfied” based on 23 our “summary affirmance” in Effie II, which concluded that 24 Murphy’s arguments were “without merit.” J.A. 15. The 25 district court cited no other factors to support the award 26 of almost half a million dollars against a litigant, who was 27 (by that stage of the litigation) pro se, other than to 28 state that the award was “consistent with the goals of the 29 Copyright Act because it will help deter future objectively 30 unreasonable lawsuits.” Id. 31 32 As an initial matter, our summary order was not a 33 “summary affirmance.” Summary affirmance is a rarely used 34 “short-cut” that is available only when an appeal is “truly 35 frivolous.” United States v. Davis, 598 F.3d 10, 13 (2d 36 Cir. 2010) (internal quotation marks omitted). The 37 distinction between summary affirmance and a summary order 38 is critical, because while the former may be an adequate 39 basis for awarding attorney’s fees, the latter, without 40 more, is not. Our summary order did not conclude that 41 Murphy’s claims were truly frivolous; rather, we simply 42 affirmed Ellie I after determining that Murphy’s appellate 43 arguments were without merit. Because the district court 44 based its decision solely on its mischaracterization of 45 Ellie II as holding Murphy’s arguments were objectively 46 unreasonable, we conclude that the district court abused its 47 discretion in granting attorney’s fees to Effie Film. We 3 1 discern no other basis in this record for an award of 2 attorney’s fees to Effie Film under 17 U.S.C. § 505. 3 4 2. Effie Film also moved to dismiss this appeal due to 5 Murphy’s failure to post an appeal bond. That motion is 6 denied in light of our strong preference for resolving 7 disputes on the merits. See Enron Oil Corp. v. Diakuhara, 8 10 F.3d 90, 95 (2d Cir. 1993); see also Baker v. Urban 9 Outfitters, Inc., 249 F. App’x 845, 846 (2d Cir. 2007) 10 (summary order) (deciding appeal on the merits without 11 reaching failure to comply with appeal bond). 12 13 For the foregoing reasons, we hereby REVERSE the order 14 of the district court awarding attorney’s fees, DENY 15 Appellee’s motion to dismiss, and DISMISS the appeal of the 16 imposition of an appeal bond, docketed under 15-1573, as 17 moot. 18 19 FOR THE COURT: 20 CATHERINE O’HAGAN WOLFE, CLERK 21 4.
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