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BRIDGEPORT MUSIC, INC.; Westbound Records, Inc., Plaintiffs–Appellants 390 383 FEDERAL REPORTER, 3d SERIES BRIDGEPORT MUSIC, INC.; Westbound Records, Inc., Plaintiffs–Appellants, Southfield Music, Inc.; Nine Records, Inc., Plaintiffs, v. DIMENSION FILMS; Miramax Film Corp., Defendants, No Limit Films LLC, Defendant– Appellee. Bridgeport Music, Inc.; Southfield Music, Inc.; Nine Records, Inc., Plaintiffs–Appellants, Westbound Records, Inc., Plaintiff, v. Dimension Films, et al., Defendants, BRIDGEPORT MUSIC, INC. v. DIMENSION FILMS 391 Cite as 383 F.3d 390 (6th Cir. 2004) No Limit Films LLC, Defendant– 2. Copyrights and Intellectual Property Appellee. O67.2 Nos. 02–6521, 03–5738. Substantial similarity or de minimis inquiry was not required on copyright in- United States Court of Appeals, fringement claim that was based upon Sixth Circuit. sampling, since sound recording owner had exclusive right to sample his own record- Argued: April 28, 2004. ing and alleged infringer did not dispute Decided and Filed: Sept. 7, 2004. that it digitally sampled that recording. 17 U.S.C.A. § 114. Rehearing Denied Oct. 6, 2004. Background: Owner of partial interest in 3. Copyrights and Intellectual Property copyright for musical composition brought O67.2 infringement action against motion picture A sound recording owner has the ex- producer. The United States District clusive right to ‘‘sample’’ his own record- Court for the Middle District of Tennes- ing. 17 U.S.C.A. § 114(b). see, Thomas A. Higgins, J., granted judg- ment for producer, 230 F.Supp.2d 830. 4. Federal Courts O754.1, 817 Owner appealed. Court of Appeals reviews the denial of Holdings: The Court of Appeals, Ralph B. a motion to amend a complaint for abuse of Guy, Jr., Circuit Judge, held that: discretion, except to the extent that it is based on a legal determination that the (1) substantial similarity or de minimis in- amendment would not withstand a motion quiry was not required on copyright to dismiss. Fed.Rules Civ.Proc.Rule 15(a), infringement claim that was based 28 U.S.C.A. upon sampling; (2) sound recording owner had exclusive 5. Federal Civil Procedure O840 right to ‘‘sample’’ his own recording; When amendment of a complaint is (3) district court’s denial of leave to raise sought at a late stage in the litigation, new copyright infringement claims there is an increased burden to show justi- based upon different song by different fication for failing to move earlier. Fed. artist was not abuse of discretion; and Rules Civ.Proc.Rule 15(a), 28 U.S.C.A. (4) award of attorney fees and costs to 6. Copyrights and Intellectual Property defendant, as prevailing party, was not O82 abuse of discretion. District court’s denial of leave to raise Affirmed in part, reversed in part, and new copyright infringement claims based remanded. upon different song by different artist was not abuse of discretion; motion was not timely because court required that any 1. Federal Courts O611 amendments be sought in sufficient time Court of Appeals exercised its discre- for completion of discovery by particular tion to entertain argument allegedly made date, and that could not have occurred if for first time on appeal, since there was amendment had been granted. Fed.Rules dearth of legal authority on issue and reso- Civ.Proc.Rule 15(a), 28 U.S.C.A.; 17 lution of issue was important to industry. U.S.C.A. § 114. 392 383 FEDERAL REPORTER, 3d SERIES 7. Federal Civil Procedure O840 11. Copyrights and Intellectual Property O90(2) Ordinarily, delay alone will not justify The discretion to award attorney fees the denial of leave to amend the complaint; under the Copyright Act is to be exercised however, delay will become undue at some in an evenhanded manner with respect to point, placing an unwarranted burden on prevailing plaintiffs and prevailing defen- the court, or prejudicial, placing an unfair dants, and in a manner consistent with the burden on the opposing party. Fed.Rules primary purposes of the Act. 17 U.S.C.A. Civ.Proc.Rule 15(a), 28 U.S.C.A. § 505. 8. Federal Courts O817 12. Copyrights and Intellectual Property O90(2) On appeal, the denial of leave to The non-exclusive factors used to con- amend a complaint may be sustained on sider whether an award of attorney fees grounds that are apparent from the rec- should be made under the Copyright Act ord. Fed.Rules Civ.Proc.Rule 15(a), 28 include frivolousness, motivation, objective U.S.C.A. unreasonableness, both in the factual and 9. Copyrights and Intellectual Property in the legal components of the case, and the need in particular circumstances to O90(1, 2) advance considerations of compensation Award of attorney fees and costs to and deterrence. 17 U.S.C.A. § 505. defendant, as prevailing party, in copy- right infringement action, was not abuse of discretion, where plaintiffs’ claim was ob- jectively unreasonable, plaintiffs’ tactics Richard S. Busch (argued and briefed), contributed to multiplication of fees by all D’Lesli M. Davis (briefed), Jeannine Hu- parties, including the defendant, and ber, King & Ballow, Nashville, TN, for unique posture of case, as one of hundreds Plaintiffs–Appellants. brought in same manner and asserting John C. Beiter (briefed), Robert L. Sulli- parallel claims, made deterrence particu- van (argued and briefed), Loeb & Loeb, larly relevant and appropriate consider- Nashville, TN, for Defendants– Appellees. ation. 17 U.S.C.A. § 505. Before GUY and GILMAN, Circuit 10. Federal Courts O830 Judges; BARZILAY, Judge.* Review of a discretionary award of costs, including reasonable attorney fees, OPINION to the prevailing party in a civil suit under RALPH B. GUY, JR., Circuit Judge. the Copyright Act is for abuse of discre- Plaintiffs, Bridgeport Music, Inc., West- tion; district court abuses its discretion bound Records, Inc., Southfield Music, when it relies on clearly erroneous factual Inc., and Nine Records, Inc., appeal from findings, improperly applies the law, or several of the district court’s findings with uses an erroneous legal standard. 17 respect to the copyright infringement U.S.C.A. § 505. claims asserted against No Limit Films.1 * The Honorable Judith M. Barzilay, Judge, 1. All of plaintiffs’ claims against Miramax United States Court of International Trade, Film Corp. and Dimension Films were dis- sitting by designation. missed with prejudice, pursuant to a settle- ment, on June 27, 2002. BRIDGEPORT MUSIC, INC. v. DIMENSION FILMS 393 Cite as 383 F.3d 390 (6th Cir. 2004) This action arises out of the use of a tions, this being one of them, based on sample from the composition and sound the allegedly infringing work and ordered recording ‘‘Get Off Your Ass and Jam’’ that amended complaints be filed.2 (‘‘Get Off’’) in the rap song ‘‘100 Miles and The claims in this case were brought by Runnin’’ (‘‘100 Miles’’), which was included all four plaintiffs: Bridgeport and South- in the sound track of the movie I Got the field, which are in the business of music Hook Up (Hook Up ). Specifically, West- publishing and exploiting musical composi- bound appeals from the district court’s tion copyrights, and Westbound Records decision to grant summary judgment to and Nine Records, which are in the busi- defendant on the grounds that the alleged ness of recording and distributing sound infringement was de minimis and there- recordings. It was conceded at the time of fore not actionable. Bridgeport, while not summary judgment, however, that neither appealing from the summary judgment or- Southfield Music nor Nine Records had der, challenges instead the denial of its any ownership interest in the copyrights at motion to amend the complaint to assert issue in this case. As a result, the district new claims of infringement based on a court ordered that they be jointly and different song included in the sound track severally liable for 10% of the attorney of Hook Up. Finally, Bridgeport, South- fees and costs awarded to No Limit Films. field, and Nine Records appeal from the Bridgeport and Westbound claim to own decision to award attorney fees and costs the musical composition and sound record- totaling $41,813.30 to No Limit Films un- ing copyrights in ‘‘Get Off Your Ass and der 17 U.S.C. § 505. For the reasons that Jam’’ by George Clinton, Jr. and the Fun- follow, we reverse the district court’s grant kadelics. We assume, as did the district of summary judgment to No Limit on court, that plaintiffs would be able to es- Westbound’s claim of infringement of its tablish ownership in the copyrights they sound recording copyright, but affirm the claim. There seems to be no dispute ei- decision of the district court as to the ther that ‘‘Get Off’’ was digitally sampled award of attorney fees and the denial of or that the recording ‘‘100 Miles’’ was in- Bridgeport’s motion to amend. cluded on the sound track of I Got the Hook Up. Defendant No Limit Films, in I. conjunction with Priority Records, re- The claims at issue in this appeal were leased the movie to theaters on May 27, originally asserted in an action filed on 1998. The movie was apparently also re- May 4, 2001, by the related entities leased on VHS, DVD, and cable television. Bridgeport Music, Southfield Music, Fatal to Bridgeport’s claims of infringe- Westbound Records, and Nine Records, ment was the Release and Agreement it alleging nearly 500 counts against approx- entered into with two of the original own- imately 800 defendants for copyright in- ers of the composition ‘‘100 Miles,’’ Ruth- fringement and various state law claims less Attack Muzick (RAM) and Dollarz N relating to the use of samples without Sense Music (DNSM), in December 1998, permission in new rap recordings.
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