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C:\Temp\Notesd30550\11.17.11.Seltzer Case 2:10-cv-02103-PSG -PLA Document 136 Filed 11/17/11 Page 1 of 12 Page ID #:2596 O UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA #108/12/113 CIVIL MINUTES - GENERAL Case No. CV 10-2103 PSG (PLAx) Date November 17, 2011 Title Dereck Seltzer v. Green Day, Inc., et al. Present: The Honorable Philip S. Gutierrez, United States District Judge Wendy K. Hernandez Not Present n/a Deputy Clerk Court Reporter Tape No. Attorneys Present for Plaintiff(s): Attorneys Present for Defendant(s): Not Present Not Present Proceedings: (In Chambers) Order Granting Defendants’ Motion for an Award of Attorneys’ Fees Before the Court is Defendants’ motion for an award of attorneys’ fees. The Court finds the matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15. After considering the moving and opposing papers, the Court GRANTS the motion. I. Background On March 23, 2010, Plaintiff Derek Seltzer (“Plaintiff”), an artist, brought suit against Defendants Billie Joe Armstrong, Frank Edwin Wright III, Michael Pritchard (together “Green Day” or “the band”), Green Day, Inc., Green Day Touring, Inc., Green Day (a partnership), Green Day (a business entity), Warner Bros. Records Inc. (collectively, “the Green Day defendants”), Infect Productions, Roger Staub, and Performance Environmental Design (“PED”) (collectively, “Defendants”), alleging that Defendants violated his intellectual property rights by using his work, Scream Icon, as part of a video backdrop shown during live performances of Green Day’s song East Jesus Nowhere. Plaintiff asserted causes of action for direct and contributory copyright infringement, as well as direct and contributory violations of the Lanham Act, 15 U.S.C. § 1125(a), unfair business practices in violation of Cal. Bus. & Prof Code § 17200, and dilution under Cal. Bus. & Prof. Code § 14330. See FAC [Dkt. # 29 (Nov. 18, 2010)]. On August 18, 2011, this Court granted summary judgment in favor of Defendants on all claims. See Order [Dkt. # 100 (Aug. 18, 2011)]. The Green Day defendants now move for an award of attorney’s fees pursuant to the Copyright Act (17 U.S.C. § 505), the Lanham Act (15 U.S.C. § 1117(a)), and Federal Rule of Civil Procedure 36(a). See Mot. [Dkt. # 108 (Sept. 9, CV-10-2103 (11/11) CIVIL MINUTES - GENERAL Page 1 of 12 Case 2:10-cv-02103-PSG -PLA Document 136 Filed 11/17/11 Page 2 of 12 Page ID #:2597 O UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA #108/12/113 CIVIL MINUTES - GENERAL Case No. CV 10-2103 PSG (PLAx) Date November 17, 2011 Title Dereck Seltzer v. Green Day, Inc., et al. 2011)]. Defendants Roger Staub and Performance Environmental Design timely joined the motion. See [Dkt. # 112 (Sept. 9, 2011); Dkt. # 113 (Sept. 9, 2011)]. II. Legal Standard Under the so-called “American Rule,” each party in a lawsuit is ordinarily responsible for its own attorneys’ fees. Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983). An award of fees may however be made pursuant to a statute or rule providing for the shifting of fees to the losing party. United States v. Standard Oil Co. of Cal., 603 F.2d 100, 103 (9th Cir. 1979). III. Discussion A. Attorney’s Fees under the Copyright Act The Copyright Act provides that in civil copyright actions the court may “award a reasonable attorney’s fee to the prevailing party as part of the costs.” 17 U.S.C. § 505. However, not every successful claim or defense will result in an award of attorney’s fees. See Historical Research v. Cabral, 80 F.3d 377, 378 (9th Cir. 1996). Rather, “[p]revailing plaintiffs and prevailing defendants are to be treated alike, but attorney’s fees are to be awarded [] only as a matter of the court’s discretion.” Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994). The pivotal inquiry is whether the successful defense furthered the goals of the Copyright Act. See Fantasy, Inc. v. Fogerty, 94 F.3d 553, 559-60 (9th Cir. 1996); Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 816 (9th Cir. 2003) (citing Fogerty, 510 U.S. at 527). “While it is true that one of the goals of the Copyright Act is to discourage infringement, it is by no means the only goal of that act.” Fogerty, 510 U.S. at 526 (emphasis in original). “[T]he policies served by the Copyright Act are more complex, more measured than simply maximizing the number of meritorious suits for copyright infringement.” See id. Indeed, the primary objective of the Copyright Act is “not to reward the labor of authors,” but to “promote the Progress of Science and useful Arts” by “encourag[ing] the production of original literary, artistic, and musical expression for the good of the public.” See Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 349-50 (1991) (citations omitted); Fogerty, 510 U.S. at 524; Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) (“The immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.”). “To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.” Feist, 499 U.S. at 349-50. CV-10-2103 (11/11) CIVIL MINUTES - GENERAL Page 2 of 12 Case 2:10-cv-02103-PSG -PLA Document 136 Filed 11/17/11 Page 3 of 12 Page ID #:2598 O UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA #108/12/113 CIVIL MINUTES - GENERAL Case No. CV 10-2103 PSG (PLAx) Date November 17, 2011 Title Dereck Seltzer v. Green Day, Inc., et al. In deciding whether to award attorney’s fees courts may look to several nonexclusive factors, often referred to as the “Lieb factors,” and may apply them “so long as they are consistent with the purposes of the Copyright Act and are applied evenly to prevailing plaintiffs and defendants.” See Fantasy, 94 F.3d at 560. These factors are: (1) the degree of success obtained; (2) frivolousness; (3) motivation; (4) the objective unreasonableness of the losing party’s factual and legal arguments; and (5) the need, in particular circumstances, to advance considerations of compensation and deterrence. See Fogerty, 510 U.S. at 535 n.19. While a court’s discretion may be influenced by the plaintiff’s culpability in bringing or pursuing the action, “blameworthiness is not a prerequisite to awarding fees.” See Fantasy, 94 F.3d at 558. Courts may also consider “whether the chilling effect of attorney’s fees may be too great or impose an inequitable burden on an impecunious plaintiff.” Ets-Hokin v. Skyy Spirits Inc., 323 F.3d 763, 766 (9th Cir. 2003). “[E]ach case will turn on its own particular facts and equities,” and an attorney’s fee award to a prevailing defendant rests within the “sound discretion of the district court informed by the policies of the Copyright Act.” Fantasy, 94 F.3d at 558; see also Entm’t Research Group, Inc. v. Genesis Creative Group, Inc., 122 F.3d 1211, 1229 (9th Cir. 1997) (noting that courts are given “wide latitude” in the exercise of their equitable discretion). 1. Application The Court first addresses Plaintiff’s argument that attorney’s fees are unavailable in this case because Defendants concede “over and over again” that they infringed Plaintiff’s copyrighted work, and because a “seminal” Ninth Circuit decision “squarely answered the question of whether attorney’s fees [] should be awarded against a copyright holder [where] defendants prevailed on summary judgment due to a finding of fair use….” See Pl. Opp. 1:12- 16, 4:21-26 (citing Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148 (9th Cir. 1986). Plaintiff contends that “attorney’s fees should not be awarded here,” following Hustler and “a litany of other cases,” because Plaintiff’s claim was not frivolous or objectively unreasonable. See Mot. 6:7-12. This argument is factually inaccurate and rests on a long- overruled standard for awarding attorney’s fees in copyright cases. First, as the plain language of 17 U.S.C. § 107 and this Court’s Order make clear, the fair use “of a copyrighted work ‘is not an infringement of copyright’ under the Copyright Act.” See Order, p. 4 (quoting 17 U.S.C. § 107). Second, Plaintiff’s citation to Hustler, a case applying the “dual” standard rejected by the Supreme Court in Fogerty, edges close to an affirmative attempt to mislead the Court. Under the so-called “dual” standard for awarding attorney’s fees in copyright actions, prevailing plaintiff’s were awarded attorney’s fees as a matter of course, while defendants were awarded attorney’s fees only upon a showing that a plaintiff’s claim was objectively unreasonable or frivolous. See Fogerty, 510 U.S. at 520; Hustler, 796 F.2d at 1156 (“An award CV-10-2103 (11/11) CIVIL MINUTES - GENERAL Page 3 of 12 Case 2:10-cv-02103-PSG -PLA Document 136 Filed 11/17/11 Page 4 of 12 Page ID #:2599 O UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA #108/12/113 CIVIL MINUTES - GENERAL Case No. CV 10-2103 PSG (PLAx) Date November 17, 2011 Title Dereck Seltzer v. Green Day, Inc., et al. of attorneys’ fees to the defendant represents “a penalty for the institution of a frivolous or bad faith suit”) (citing Jartach, Inc.
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