BRIDGEPORT MUSIC, INC.; Westbound Records, Inc., Plaintiffs–Appellants

Home , Bridgeport Music

390 383 FEDERAL REPORTER, 3d SERIES

BRIDGEPORT MUSIC, INC.; Westbound Records, Inc., Plaintiffs–Appellants,

Southfield Music, Inc.; Nine Records, Inc., Plaintiffs,

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,

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 judgment 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 copyright infringement action, was not abuse of discretion, where plaintiffs’ claim was objectively 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. In Au- granting a sample use license to RAM, gust 2001, the district court severed that DNSM, and their licensees. Finding that original complaint into 476 separate ac- No Limit Films had previously been grant-

2. These are two of eleven appeals arising out (Nos.02–6521, 03–5002, 03–5003, 03–5004, of six related lawsuits that have been assigned 03–5005, 03–5738, 03–5739, 03–5741, 03– to this panel for hearing and decision 5742, 03–5744, 03–5656). 394 383 FEDERAL REPORTER, 3d SERIES

ed an oral synchronization license to use ‘‘Get Off.’’ The arpeggiated chord is the composition ‘‘100 Miles’’ in the sound played on an unaccompanied electric track of Hook Up, the district court con- guitar. The rapidity of the notes and cluded Bridgeport’s claims against No the way they are played produce a high- Limit Films were barred by the unambigu- pitched, whirling sound that captures ous terms of the Release and Agreement. the listener’s attention and creates antic- Bridgeport Music, Inc. v. Dimension ipation of what is to follow. Films LLC, 230 F.Supp.2d 830, 833–38 (M.D.Tenn.2002). Although Bridgeport Bridgeport, 230 F.Supp.2d at 839. No does not appeal from this determination, it Limit Films moved for summary judg- is relevant to the district court’s later deci- ment, arguing (1) that the sample was not sion to award attorney fees to No Limit protected by copyright law because it was Films. not ‘‘original’’; and (2) that the sample was legally insubstantial and therefore does Westbound’s claims are for infringement not amount to actionable copying under of the sound recording ‘‘Get Off.’’ 3 Be- copyright law. cause defendant does not deny it, we assume that the sound track of Hook Up Mindful of the limited number of notes used portions of ‘‘100 Miles’’ that included and chords available to composers, the dis- the allegedly infringing sample from ‘‘Get trict court explained that the question Off.’’ The recording ‘‘Get Off’’ opens with a turned not on the originality of the chord three-note combination solo guitar ‘‘riff’’ but, rather, on ‘‘the use of and the aural that lasts four seconds. According to one effect produced by the way the notes and of plaintiffs’ experts, Randy Kling, the re- the chord are played, especially here cording ‘‘100 Miles’’ contains a sample where copying of the sound recording is at from that guitar solo. Specifically, a two- issue.’’ Id. (citations omitted). The dis- second sample from the guitar solo was trict court found, after carefully listening copied, the pitch was lowered, and the to the recording of ‘‘Get Off,’’ ‘‘that a jury copied piece was ‘‘looped’’ and extended to could reasonably conclude that the way the 16 beats. Kling states that this sample arpeggiated chord is used and memorial- appears in the sound recording ‘‘100 Miles’’ ized in the ‘Get Off’ sound recording is in five places; specifically, at 0:49, 1:52, original and creative and therefore entitled 2:29, 3:20 and 3:46. By the district court’s to copyright protection.’’ Id. (citing New- estimation, each looped segment lasted ap- ton v. Diamond, 204 F.Supp.2d 1244, proximately 7 seconds. As for the seg- 1249–59 (C.D.Cal.2002)) (later affirmed on ment copied from ‘‘Get Off,’’ the district other grounds at 349 F.3d 591 (9th Cir. court described it as follows: 2003)). No Limit Films does not appeal The portion of the song at issue here from this determination. is an arpeggiated chord—that is, three notes that, if struck together, comprise a Turning then to the question of de min- chord but instead are played one at a imis copying in the context of digital sam- time in very quick succession—that is pling, the district court concluded that, repeated several times at the opening of whether the sampling is examined under a

3. Sound recordings and their underlying mu- 3 (6th Cir.), cert. denied, ––– U.S. ––––, 124 sical compositions are separate works with S.Ct. 399, 157 L.Ed.2d 279 (2003) (consoli- their own distinct copyrights. See 17 U.S.C. dated appeals from the dismissal of 19 of the § 102(a)(2), (7). Bridgeport Music, Inc. v. 476 actions for lack of personal jurisdiction). Still N The Water Publ’g, 327 F.3d 472, 475 n. BRIDGEPORT MUSIC, INC. v. DIMENSION FILMS 395 Cite as 383 F.3d 390 (6th Cir. 2004)

qualitative/quantitative de minimis analy- ment as a matter of law. Fed.R.Civ.P. sis or under the so-called ‘‘fragmented lit- 56(c). eral similarity’’ test, the sampling in this case did not ‘‘rise to the level of a legally In granting summary judgment to de- cognizable appropriation.’’ 230 F.Supp.2d fendant, the district court looked to gener- at 841. Westbound argues that the dis- al de minimis principles and emphasized trict court erred both in its articulation of the paucity of case law on the issue of the applicable standards and its determi- whether digital sampling amounts to copy- nation that there was no genuine issue of right infringement. Drawing on both the fact precluding summary judgment on this quantitative/qualitative and ‘‘fragmented issue. literal similarity’’ approaches, the district On October 11, 2002, the district court court found the de minimis analysis was a granted summary judgment to No Limit derivation of the substantial similarity ele- Films on the claims of Bridgeport and ment when a defendant claims that the Westbound; dismissed with prejudice the literal copying of a small and insignificant claims of Southfield and Nine Records; portion of the copyrighted work should be denied as moot the motion of Bridgeport allowed. After listening to the copied seg- and Westbound for partial summary judgment, the sample, and both songs, the ment on the issue of copyright ownership; district court found that no reasonable ju- and entered final judgment accordingly. ror, even one familiar with the works of Bridgeport and Westbound appealed. The George Clinton, would recognize the facts relevant to the earlier denial of source of the sample without having been Bridgeport’s motion to amend the com- told of its source. This finding, coupled plaint will be discussed below. No Limit with findings concerning the quantitatively Films filed a post-judgment motion for small amount of copying involved and the attorney fees and costs, which the district lack of qualitative similarity between the court granted for the reasons set forth in works, led the district court to conclude its memorandum opinion and order of that Westbound could not prevail on its April 24, 2003. Bridgeport, Southfield claims for copyright infringement of the Music, and Nine Records appealed from sound recording. that award. Westbound does not challenge the dis- II. trict court’s characterization of either the segment copied from ‘‘Get Off’’ or the sam- The district court’s decision granting summary judgment is reviewed de novo. ple that appears in ‘‘100 Miles.’’ Nor does Smith v. Ameritech, 129 F.3d 857, 863 (6th Westbound argue that there is some genu- Cir.1997). In deciding a motion for sum- ine dispute as to any material fact concern- mary judgment, the court must view the ing the nature of the protected material in evidence and reasonable inferences in the the two works. The heart of Westbound’s light most favorable to the nonmoving par- arguments is the claim that no substantial ty. Matsushita Elec. Indus. Co. v. Zenith similarity or de minimis inquiry should be Radio Corp., 475 U.S. 574, 587, 106 S.Ct. undertaken at all when the defendant has 1348, 89 L.Ed.2d 538 (1986). Summary not disputed that it digitally sampled a judgment is appropriate when there are no copyrighted sound recording. We agree genuine issues of material fact in dispute and accordingly must reverse the grant of and the moving party is entitled to judg- summary judgment. 396 383 FEDERAL REPORTER, 3d SERIES

A. Digital Sampling of Copyrighted copyrighted sound recording. We as- Sound Recordings sume that Westbound will be able to [1] At the outset it is important to establish it has a copyright in the sound make clear the precise nature of our deci- recording and that a digital sample from sion. Our conclusions are as follows: the copyrighted sound recording was 1. The analysis that is appropriate used in this case. for determining infringement of a musi- 4. This case involves ‘‘digital sam- cal composition copyright, is not the pling’’ which is a term of art well under- analysis that is to be applied to deter- stood by the parties to this litigation and mine infringement of a sound recording. the music industry in general. Accord- We address this issue only as it pertains to sound recording copyrights.4 ingly, we adopt the definition commonly 2. Since the district court decision accepted within the industry. essentially tracked the analysis that is 5. Because of the court’s limited made if a musical composition copyright technological knowledge in this special- were at issue, we depart from that anal- ized field, our opinion is limited to an 5 ysis. instance of digital sampling of a sound 3. We would agree with the district recording protected by a valid copyright. court’s analysis on the question of origi- If by analogy it is possible to extend our nality if the composition copyright had analysis to other forms of sampling, we been at issue. Having concluded that leave it to others to do so. the statute requires a different analysis 6 for sound recording copyrights, howev- 6. Advances in technology coupled er, we also find that the requirement of with the advent of the popularity of hip originality is met by the fixation of hop or rap music have made instances of sounds in the master recording. Only digital sampling extremely common and an actual physical copy of a master re- have spawned a plethora of copyright cording will be exactly the same as the disputes and litigation.

4. Defendants claim that this argument is production arena is low due to the influx of made for the first time on appeal. Assuming affordable digital recording equipment. The without deciding that such is the case, we combination of a microphone, digital audio nonetheless exercise our discretion to enter- equipment, consumer audio equipment and tain this argument due to the dearth of legal an album or compact disc collection are the authority on this issue and the importance of only tools needed to produce commercial rap the resolution of this issue to the music indus- music. Second, utilizing samples as the mu- try. sical element of the song enables the producer 5. ‘‘In most copyright actions, the issue is to create commercial rap music without any whether the infringing work is substantially original musical accompaniment prior to re- similar to the original workTTTT The scope of cording the vocals. Third, using music sam- inquiry is much narrower when the work in ples saves a considerable amount of time question is a sound recording. The only issue when compared to the traditional recording is whether the actual sound recording has methods because another artist already re- been used without authorization. Substantial corded the underlying musicTTTT’’ Stephen R. similarity is not an issueTTTT’’ Bradley C. Ro- Wilson, Music Sampling Lawsuits: Does sen, Esq., 22 CAUSES OF ACTION § 12 (2d Looping Music Samples Defeat the De Minimis ed.2003). Defense?, 1 Journal of High Technology Law (JHTL) 179 n. 9 (2002) (citations omitted). 6. ‘‘E.g., Terry Fryer, Sampling Jargon Illus- trated, KEYBOARD, June 1988, at 66–73. First, the cost barrier to enter into the audio BRIDGEPORT MUSIC, INC. v. DIMENSION FILMS 397 Cite as 383 F.3d 390 (6th Cir. 2004)

7. The music industry, as well as the pantomimes, and pictorial, graphic, or courts, are best served if something ap- sculptural works, including the indi- proximating a bright-line test can be vidual images of a motion picture or established. Not necessarily a ‘‘one size other audiovisual work, to display the fits all’’ test, but one that, at least, adds copyrighted work publicly; and clarity to what constitutes actionable in- (6) in the case of sound recordings, fringement with regard to the digital to perform the copyrighted work pub- sampling of copyrighted sound record- licly by means of a digital audio trans- ings. mission. B. Analysis Section 114(b) states: [2] We do not set forth the arguments (b) The exclusive right of the owner made by Westbound since our analysis of copyright in a sound recording under differs somewhat from that offered by the clause (1) of section 106 is limited to the plaintiff. Our analysis begins and largely right to duplicate the sound recording in ends with the applicable statute. Section the form of phonorecords or copies that 114(a) of Title 17 of the United States directly or indirectly recapture the actu- Code provides: al sounds fixed in the recording. The The exclusive rights of the owner of exclusive right of the owner of copyright copyright in a sound recording are limit- in a sound recording under clause (2) of ed to the rights specified by clauses (1), section 106 is limited to the right to (2), (3) and (6) of section 106, and do not prepare a derivative work in which the include any right of performance under actual sounds fixed in the sound record- section 106(4). ing are rearranged, remixed, or other- Section 106 provides: wise altered in sequence or quality. The Subject to sections 107 through 122, exclusive rights of the owner of copy- the owner of copyright under this title right in a sound recording under clauses has the exclusive rights to do and to (1) and (2) of section 106 do not extend authorize any of the following: to the making or duplication of another sound recording that consists entirely of (1) to reproduce the copyrighted an independent fixation of other sounds, work in copies or phonorecords; even though such sounds imitate or sim- (2) to prepare derivative works ulate those in the copyrighted sound based upon the copyrighted work; recording. The exclusive rights of the (3) to distribute copies or phonorec- owner of copyright in a sound recording ords of the copyrighted work to the under clauses (1), (2), and (3) of section public by sale or other transfer of 106 do not apply to sound recordings ownership, or by rental, lease, or lend- included in educational television and ra- ing; dio programs (as defined in section 397 (4) in the case of literary, musical, of title 47) distributed or transmitted by dramatic, and choreographic works, or through public broadcasting entities pantomimes, and motion pictures and (as defined by section 118(g)): Provided, other audiovisual works to perform That copies or phonorecords of said pro- the copyrighted work publicly; grams are not commercially distributed (5) in the case of literary, musical, by or through public broadcasting enti- dramatic, and choreographic works, ties to the general public. 398 383 FEDERAL REPORTER, 3d SERIES

Before discussing what we believe to be § 114(b). This means that the world at the import of the above quoted provisions large is free to imitate or simulate the of the statute, a little history is necessary. creative work fixed in the recording so The copyright laws attempt to strike a long as an actual copy of the sound record- balance between protecting original works ing itself is not made.7 That leads us and stifling further creativity. The provi- directly to the issue in this case. If you sions, for example, for compulsory licens- cannot pirate the whole sound recording, ing make it possible for ‘‘creators’’ to enjoy can you ‘‘lift’’ or ‘‘sample’’ something less the fruits of their creations, but not to than the whole. Our answer to that ques- fence them off from the world at large. 17 tion is in the negative. U.S.C. § 115. Although musical compositions have always enjoyed copyright pro- [3] Section 114(b) provides that ‘‘[t]he tection, it was not until 1971 that sound exclusive right of the owner of copyright in recordings were subject to a separate a sound recording under clause (2) of sec- copyright. If one were to analogize to a tion 106 is limited to the right to prepare a book, it is not the book, i.e., the paper and derivative work in which the actual sounds binding, that is copyrightable, but its con- fixed in the sound recording are rear- tents. There are probably any number of ranged, remixed, or otherwise altered in reasons why the decision was made by sequence or quality.’’ In other words, a Congress to treat a sound recording differ- sound recording owner has the exclusive ently from a book even though both are right to ‘‘sample’’ his own recording. We the medium in which an original work is find much to recommend this interpreta- 8 fixed rather than the creation itself. None tion. the least of them certainly were advances To begin with, there is ease of enforce- in technology which made the ‘‘pirating’’ of ment. Get a license or do not sample. sound recordings an easy task. The bal- We do not see this as stifling creativity in ance that was struck was to give sound any significant way. It must be remem- recording copyright holders the exclusive bered that if an artist wants to incorporate right ‘‘to duplicate the sound recording in a ‘‘riff’’ from another work in his or her the form of phonorecords or copies that recording, he is free to duplicate the sound directly or indirectly recapture the actual of that ‘‘riff’’ in the studio. Second, the sounds fixed in the recording.’’ 17 U.S.C. market will control the license price and

7. Needless to say, in the case of a recording of recording are rearranged, remixed, or other- a musical composition the imitator would wise altered in sequence or quality. have to clear with the holder of the composi- The import of this language is that it does not tion copyright. matter how much a digital sampler alters the actual sounds or whether the ordinary lay 8. First, by clarifying the rights of a sound observer can or cannot recognize the song or recording copyright owner in regard to derivative works, Section 114(b) makes it clear the artist’s performance of it. Since the ex- that the digital sampling of a copyrighted clusive right encompasses rearranging, remix- sound recording must typically be licensed to ing, or otherwise altering the actual sounds, avoid an infringement. Section 114(b) states the statute by its own terms precludes the use that: of a substantial similarity test. The exclusive right of the owner of copyright Susan J. Latham, Newton v. Diamond: Meas- in a sound recording under [the section 106 uring the Legitimacy of Unauthorized Compo- right to prepare derivative works] is limited to sitional Sampling—A Clue Illuminated and the right to prepare a derivative work in Obscured, 26 Hastings Comm. & Ent. L.J. which the actual sounds fixed in the sound 119, 125 (2003) (footnotes omitted). BRIDGEPORT MUSIC, INC. v. DIMENSION FILMS 399 Cite as 383 F.3d 390 (6th Cir. 2004)

keep it within bounds.9 The sound record- sampled, the part taken is something of ing copyright holder cannot exact a license value.11 No further proof of that is neces- fee greater than what it would cost the sary than the fact that the producer of the person seeking the license to just duplicate record or the artist on the record inten- the sample in the course of making the tionally sampled because it would (1) save new recording. Third, sampling is never costs, or (2) add something to the new accidental. It is not like the case of a recording, or (3) both. For the sound composer who has a melody in his head, recording copyright holder, it is not the perhaps not even realizing that the reason ‘‘song’’ but the sounds that are fixed in the he hears this melody is that it is the work medium of his choice. When those sounds of another which he had heard before. are sampled they are taken directly from When you sample a sound recording you that fixed medium. It is a physical taking know you are taking another’s work prod- rather than an intellectual one. uct. This case also illustrates the kind of This analysis admittedly raises the ques- mental, musicological, and technological tion of why one should, without infringing, gymnastics that would have to be em- be able to take three notes from a musical ployed if one were to adopt a de minimis composition, for example, but not three or substantial similarity analysis. The dis- notes by way of sampling from a sound trict judge did an excellent job of navigat- recording. Why is there no de minimis ing these troubled waters, but not without taking or why should substantial similarity dint of great effort. When one considers not enter the equation.10 Our first answer that he has 800 other cases all involving to this question is what we have earlier different samples from different songs, the indicated. We think this result is dictated value of a principled bright-line rule be- by the applicable statute. Second, even comes apparent. We would want to em- when a small part of a sound recording is phasize, however, that considerations of

9. ‘‘Samplers should apply for the appropriate This suggests that the substantial similarity licenses, respect the rights of copyright hold- test is inapplicable to sound recordings.’’ Jef- ers, and be respected in turn as equal cre- frey R. Houle, Digital Audio Sampling, Copy- ators, Responsibility for obtaining clearance right Law and the American Music Industry: should fall to either the artist, the label, or Piracy or Just a Bad ‘‘RAP’’?, 37 Loy. L.Rev. both. Samplers realize that in the litigious 879, 896 (1992). environment of the United States, there is nothing to be gained and much money poten- 11. ‘‘(A)ll samples from a record appropriate tially to be lost by being a renegade. Surely the work of the musicians who performed on some obscure materials will be sampled and that record. This enables the sampler to use overlooked, but the process should proceed a musical performance without hiring either devoid of recrimination and with the opportu- the musician who originally played it or a nity for money to be made by both the sam- different musician to play the music again. pler and those whom he samples.’’ David Thus sampling of records TTT allows a pro- Sanjek, ‘‘Don’t Have to DJ No More’’: Sam- ducer of music to save money (by not hiring a pling and the ‘‘Autonomous’’ Creator, 10 Car- musician) without sacrificing the sound and dozo Arts & Ent. L.J. 607, 621 (1992). phrasing of a live musician in the song. This practice poses the greatest danger to the mu- 10. ‘‘Thus, it seems like the only way to in- sical profession because the musician is being fringe on a sound recording is to re-record replaced with himself.’’ Christopher D. sounds from the original work, which is ex- Abramson, Digital Sampling and the Record- actly the nature of digital sound sampling. ing Musician: A Proposal for Legislative Pro- Then the only issue becomes whether the de- tection, 74 N.Y.U. L.Rev. 1660, 1668 (1999) fendant re-recorded sound from the original. (footnote omitted). 400 383 FEDERAL REPORTER, 3d SERIES judicial economy are not what drives this order. First, although we followed no ex- opinion. If any consideration of economy isting judicial precedent, we did not pull is involved it is that of the music industry. this interpretation out of thin air.13 Sever- As this case and other companion cases al law review and text writers, some of make clear, it would appear to be cheaper whom have been referenced in this opin- 12 to license than to litigate. ion, have suggested that this is the proper Since our holding arguably sets forth a interpretation of the copyright statute as it new rule, several other observations are in pertains to sound recordings.14 Since digi-

12. ‘‘The current lack of bright-line rules leads such sounds imitate or simulate those in the to unpredictability, which may be one reason copyrighted sound recording’’ [17 U.S.C. that so few sampling cases are brought to § 114(b)] (emphasis added). By using the trialTTTT A cost-benefit analysis generally indi- words ‘‘entirely of an independent fixation’’ in cates that is is less expensive for a sampler to referring to sound recordings which may imi- purchase a license before sampling (or settle a tate or simulate the sounds of another, Con- post-sampling lawsuit) rather than take his gress may have intended that a recording chances in an expensive trial, the outcome of containing any sounds of another recording which TTT is nearly impossible to predict with would constitute infringement. Thus, it any degree of certainty.’’ Stephen R. Wilson, would appear that any unauthorized use of a Music Sampling Lawsuits: Does Looping Mu- digital sample taken from another’s copy- sic Samples Defeat the De Minimis Defense, 1 righted recording would be an infringement Journal of High Technology Law (JHTL) 179, of the copyrighted recording. 187 n. 97 (2002). In fact, the copyright law specifically provides that the owner of copyright in a sound 13. We have not addressed in detail any of the recording has the exclusive right to prepare a cases frequently cited in these music copy- derivative work ‘‘in which the actual sounds right cases because in the main they involved fixed in the sound recording are rearranged, infringement of the composition copyright remixed, or otherwise altered in sequence or and not the sound recording copyright. Bax- quality.’’ A recording that embodies samples ter v. MCA, Inc., 812 F.2d 421 (9th Cir.1987); taken from the sound recording of another is Grand Upright Music Ltd. v. Warner Bros. Rec- by definition a ‘rearranged, remixed, or other- ords, Inc., 780 F.Supp. 182 (S.D.N.Y.1991); wise altered in sequence or quality.’ Jarvis v. A & M Records, 827 F.Supp. 282 It has been suggested that the strong pro- (D.N.J.1993); Williams v. Broadus, 60 tection implied by the foregoing provisions U.S.P.Q.2d 1051 (S.D.N.Y.2001); Newton v. could be mitigated by a judicially applied Diamond, 349 F.3d 591, 594–95 (9th Cir. standard which permits some degree of de 2003). minimis copying or copying where the sampled portion of the resulting work is not sub- 14. 2. Infringement of the Sound Recording stantially similar to the copied work. For No known court decisions are available at example, a court could determine that the this time to help determine the extent to taking of a millisecond of sound from anoth- which samples may be made of copyrighted er’s copyrighted recording, or the taking of a recordings without the permission of their more extensive portion that has been modi- owners. Certain provisions of the copyright fied to the point of being completely unrecog- law, however, do suggest that broader protec- nizable or impossible to associate with the tion against unauthorized sampling may be copied recording, does not constitute infringe- available for owners of sound recordings than ment. It is believed, however, that the courts for the owners of musical compositions that should take what appears to be a rare oppor- may be embodied in those sound recordings. tunity to follow a ‘‘bright line’’ rule specifical- For example, the copyright act states that, ly mandated by Congress. This would result ‘‘The exclusive rights of the owner of copy- in a substantial reduction of litigation costs right in a sound recording TTT do not extend and uncertainty attending disputes over sam- to the making or duplication of another sound pling infringement of sound recordings and recording that consists entirely of an indepen- would promote a faster resolution of these dent fixation of other sounds, even though disputes. BRIDGEPORT MUSIC, INC. v. DIMENSION FILMS 401 Cite as 383 F.3d 390 (6th Cir. 2004)

tal sampling has become so commonplace a significant number of persons and com- and rap music has become such a signifi- panies have elected to go the licensing cant part of the record industry, it is not route. Also there is a large body of pre– surprising that there are probably a hun- 1971 sound recordings that is not protect- dred articles dealing with sampling and its ed and is up for grabs as far as sampling is ramifications. It is also not surprising concerned. Additionally, just as many art- that the viewpoint expressed in a number ists and companies choose to sample and of these articles appears driven by whose take their chances, it is likely that will ox is being gored. As is so often the case, continue to be the case. where one stands depends on where one Third, the record industry, including the sits. For example, the sound recording recording artists, has the ability and know- copyright holders favor this interpretation how to work out guidelines, including a as do the studio musicians and their labor fixed schedule of license fees, if they so organization. On the other hand, many of choose. the hip hop artists may view this rule as stifling creativity. The record companies Fourth, we realize we are announcing a and performing artists are not all of one new rule and because it is new, it should mind, however, since in many instances, not play any role in the assessment of today’s sampler is tomorrow’s samplee. concepts such as ‘‘willful’’ or ‘‘intentional’’ The incidence of ‘‘live and let live’’ has in cases that are currently before the been relatively high, which explains why so courts or had their genesis before this many instances of sampling go unprotested decision was announced. and why so many sampling controversies Finally, and unfortunately, there is no have been settled. Rosetta stone for the interpretation of the Second, to pursue further the subject of copyright statute. We have taken a ‘‘liter- stifling creativity, many artists and record al reading’’ approach. The legislative his- companies have sought licenses as a mat- tory is of little help because digital sam- ter of course.15 Since there is no record of pling wasn’t being done in 1971. If this is those instances of sampling that either go not what Congress intended or is not what unnoticed or are ignored, one cannot come they would intend now, it is easy enough up with precise figures, but it is clear that for the record industry, as they have done

While the question whether an unautho- 15. ‘‘As a result of actual, as well as threat- rized use of a digital sample infringes a musi- ened, litigation in the area of digital sampling cal composition may require a full substantial infringement, several developments have oc- similarity analysis, the question whether the curred. Sampling clearinghouses serve as use of a sample constitutes infringement of a one recent outgrowth. These companies are sound recording could end upon a determina- similar to publisher clearinghouses in that tion that the sampler physically copied the they are authorized by member copyright copyrighted sound recording of another. If owners to clear samples for use on albums the sampler physically copied any portion of according to an agreed upon fee structure. another’s copyrighted sound recording, then In addition, record companies and most mu- infringement should be found. If the sampler sic publishers have instituted certain licensing did not physically copy, then there could be policies as more and more artists routinely no infringement (even if the resulting record- seek clearance for their samples with the ing substantially simulates or imitates the hope of avoiding litigation.’’ A. Dean John- original recording). son, Music Copyrights: The Need for an Appro- AL KOHN & BOB KOHN, KOHN ON MUSIC priate Fair Use Analysis in Digital Sampling LICENSING 1486–87 (Aspen Law & Business Infringement Suits, 21 Fla. St. U.L.Rev. 135, 3d ed.2002) (footnotes omitted). 163 (1993) (footnote omitted). 402 383 FEDERAL REPORTER, 3d SERIES in the past, to go back to Congress for a critical factors in determining whether clarification or change in the law. This is an amendment should be granted. the best place for the change to be made, Head v. Jellico Hous. Auth., 870 F.2d rather than in the courts, because as this 1117, 1123 (6th Cir.1989) (quoting Hage- case demonstrates, the court is never man v. Signal L.P. Gas, Inc., 486 F.2d aware of much more than the tip of the 479, 484 (6th Cir.1973)). ‘‘When amend- iceberg. To properly sort out this type of ment is sought at a late stage in the litiga- problem with its complex technical and tion, there is an increased burden to show business overtones, one needs the type of justification for failing to move earlier.’’ investigative resources as well as the abili- Wade, 259 F.3d at 459 (citing Duggins v. ty to hold hearings that is possessed by Steak ‘N Shake, Inc., 195 F.3d 828, 834 Congress. (6th Cir.1999)). These conclusions require us to reverse A. Facts the entry of summary judgment on West- Plaintiffs commenced this action in May bound’s claims against No Limit Films. 2001, and filed an amended complaint in September 2001. In November 2001, the III. district court entered a scheduling order [4, 5] Bridgeport’s substantive appeal which required that any motion to amend is from the denial of leave to file a second pleadings be filed far enough in advance of amended complaint that would have as- April 1, 2002, to allow briefing to be com- serted new claims of infringement based pleted by that date. Discovery was to be on the inclusion of a different song, called completed by May 21, 2002. On March 18, ‘‘How Ya Do Dat,’’ in the sound track of 2002, the district court extended the time Hook Up.16 We review the denial of a for amending pleadings with the proviso motion to amend for abuse of discretion, that it would have to be done in time to except to the extent that it is based on a avoid extending discovery beyond May 21, legal determination that the amendment 2002. would not withstand a motion to dismiss. On April 15, 2002, plaintiffs’ counsel re- Wade v. Knoxville Utilities Bd., 259 F.3d ceived a ‘‘cue sheet’’ for Hook Up that 452, 459 (6th Cir.2001). Leave to amend a apparently alerted Bridgeport to the pres- pleading shall be freely given ‘‘when jus- ence of another song in which it held a tice so requires.’’ FED.R.CIV.P. 15(a). copyright interest. Specifically, Bridge- Undue delay in filing, lack of notice to port claims 37% interest in the composition the opposing party, bad faith by the ‘‘How Ya Do Dat’’ (‘‘How Ya’’) under a moving party, repeated failure to cure Release and Agreement dated October 21, deficiencies by previous amendments, 1998, that granted permission to use a undue prejudice to the opposing party, sample from the composition ‘‘One of and futility of amendment are all factors Those Funky Things’’ in ‘‘How Ya.’’ While which may affect the decision. Delay by there was disagreement about whether itself is not sufficient reason to deny a discovery made available as early as Octo- motion to amend. Notice and substan- ber 2001 should have alerted Bridgeport of tial prejudice to the opposing party are this claim, there is no dispute that the

16. The district court also denied plaintiffs Miles’’ in I Got the Hook Up. Plaintiffs have leave to amend to add claims against new abandoned any appeal with respect to the parties arising from the inclusion of ‘‘100 denial of that request. BRIDGEPORT MUSIC, INC. v. DIMENSION FILMS 403 Cite as 383 F.3d 390 (6th Cir. 2004) presence of ‘‘How Ya’’ was readily observ- although brief, touched on undue delay and able from watching the movie. In fact, the prejudice, explaining: magistrate judge noted that the ‘‘cue The plaintiffs object to the Magistrate sheet’’ appears to be a list of credits from Judge’s conclusion that plaintiffs had not the end of the film. offered a sufficient reason for failing to amend their complaint to add claims and Plaintiffs moved to amend on April 19, parties by the deadline set by the Court. 2002, and No Limit Films opposed the Plaintiffs argue that this deadline was motion in a response filed on April 26, modified by subsequent order, and that 2002. On May 6, 2002, the magistrate the Magistrate Judge erred under Sixth judge recommended that the motion be Circuit law by not allowing the amend- denied. Plaintiffs filed objections on May ments in the interests of justice. The 16, 2002, and defendant responded on May defendants respond that [the] Magis- 30, 2002. The discovery cutoff date, May trate Judge correctly concluded that, un- 21, had passed, but the deadline for com- der the circumstances of this case, pleting depositions had been extended to amendment on the eve of the close of June 14, 2002. But, the deadline for filing discovery would be prejudicial to defen- dispositive motions continued to be June dants and unduly delay trial. 21, 2002. No Limit Films filed its motion for summary judgment on that date. On After careful consideration of the entire August 14, 2002, the district court entered record, the Court adopts and approves the its order overruling plaintiffs’ objections, Magistrate Judge’s Report and Recom- denying plaintiffs’ motion to amend, and mendation. The plaintiffs’ objections are denying plaintiffs’ further motion to certify overruled. The interest of justice in this case requires that plaintiffs show good the issue for appeal. cause why the Court should allow amendment of their complaint to add a claim and B. Analysis parties after the Court’s deadline for such [6, 7] Bridgeport maintains the district amendments, which the plaintiffs have court abused its discretion by denying failed to do. leave to amend on the grounds of unjusti- [8] To the extent that this brief discus- fied delay and in the absence of a finding sion leaves doubt that a finding of preju- of prejudice to the defendant. It is true dice was made, we may sustain a denial of that, ordinarily, delay alone will not justify leave to amend on grounds that are appar- the denial of leave to amend the complaint. ent from the record. Morse, 290 F.3d at Morse v. McWhorter, 290 F.3d 795, 800 801. (6th Cir.2002). Delay, however, will be- Defendant clearly argued that it would come ‘‘undue’’ at some point, ‘‘placing an be unfairly prejudiced if required to re- unwarranted burden on the court,’’ or spond to a distinct new claim of infringe- ‘‘ ‘prejudicial,’ placing an unfair burden on ment with only a few weeks of discovery the opposing party.’’ Morse, 290 F.3d at remaining. Plaintiffs focus on the magis- 800 (citing Adams v. Gould Inc., 739 F.2d trate judge’s mistaken reliance on the 858, 863 (3d Cir.1984)). April 1 deadline for seeking leave to Had the district court made an explicit amend. Nonetheless, as defendant argues, finding of prejudice, very little would need plaintiffs’ motion was not timely because to be said in affirming the denial of leave the district court required that any amend- in this case. The district court’s order, ments be sought in sufficient time that 404 383 FEDERAL REPORTER, 3d SERIES discovery could be completed before May under the Copyright Act. 17 U.S.C. 21. Also, the record reflects that although § 505.17 Our review is for abuse of discre- there were extensions of discovery beyond tion. Coles v. Wonder, 283 F.3d 798, 804 that date, extensions were only granted to (6th Cir.2002) (affirming award to prevail- allow the completion of certain depositions ing defendant); Murray Hill Publ’ns, Inc. and did not affect the deadline for filing v. ABC Communications, Inc., 264 F.3d dispositive motions. We find no abuse of 622, 639 (6th Cir.2001) (reversing award to discretion in the district court’s denial of prevailing defendant). A district court leave to raise new claims based on a differ- abuses its discretion when it relies on ent song, by a different artist, in the mov- clearly erroneous factual findings, improp- ie. erly applies the law, or uses an erroneous legal standard. Adcock–Ladd v. Sec’y of IV. Treasury, 227 F.3d 343, 349 (6th Cir.2000). [9] Bridgeport, Southfield Music, and [11, 12] The discretion to award attor- Nine Records appeal from the decision to ney fees under § 505 is to be exercised in award $41,813.30 in attorney fees and costs an evenhanded manner with respect to to No Limit Films as a prevailing party prevailing plaintiffs and prevailing defen- under 17 U.S.C. § 505. Apportioning the dants, and in a manner consistent with the award between these plaintiffs, the district primary purposes of the Copyright Act. court ordered that Southfield and Nine Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 Records be held liable, jointly and several- S.Ct. 1023, 127 L.Ed.2d 455 (1994). ly, for 10% of the total. The district court ‘‘ ‘There is no precise rule or formula for also found that no award was warranted making these determinations,’ but instead against Westbound Records because its equitable discretion should be exercised ‘in claims were objectively reasonable and light of the considerations we have identi- based on a developing area of copyright fied.’ ’’ Id. at 534, 114 S.Ct. 1023 (quoting law. As a result, the amount of fees rea- Hensley v. Eckerhart, 461 U.S. 424, 436– sonably incurred in defense of this action 37, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)).18 were reduced by 50%. Plaintiffs do not Several nonexclusive factors may be con- challenge the calculation of the fees or the sidered as long as they are ‘‘faithful to the inclusion of any particular item. purposes of the Copyright Act and are [10] A court may, in its discretion, applied to prevailing plaintiffs and defen- award costs, including reasonable attorney dants in an evenhanded manner.’’ Id. at fees, to the prevailing party in a civil suit 534 n. 19, 114 S.Ct. 1023. Those nonexclu-

17. Section 505 provides that: ‘‘In any civil plaintiffs may hold copyrights and run the action under this title, the court in its discre- ‘‘gamut’’ from large corporations to ‘‘starving tion may allow the recovery of full costs by or artists’’; the need to encourage ‘‘defendants against any party other than the United States who seek to advance a variety of meritorious or an officer thereof. Except as otherwise copyright defenses TTT to litigate them to the provided by this title, the court may also same extent that plaintiffs are encouraged to award a reasonable attorney’s fee to the pre- litigate meritorious claims of infringement’’; vailing party as part of the costs.’’ and the fact that ‘‘a successful defense of a 18. Those considerations include: the primary copyright infringement action may further the objective of the Copyright Act to ‘‘encourage policies of the Copyright Act every bit as the production of original literary, artistic, much as a successful prosecution of an in- and musical expression for the good of the fringement claim by the holder of a copy- public’’; the fact that defendants as well as right.’’ Id. at 524 and 527, 103 S.Ct. 1933. BRIDGEPORT MUSIC, INC. v. DIMENSION FILMS 405 Cite as 383 F.3d 390 (6th Cir. 2004)

sive factors include: ‘‘frivolousness, moti- ord suggests Bridgeport would not have vation, objective unreasonableness (both in sued No Limit Films if it had been aware the factual and in the legal components of of the oral license. the case) and the need in particular circumstances to advance considerations of This brings us to what the district court compensation and deterrence.’’ Id. (quot- called the deciding factor—the manner in ing Lieb v. Topstone Indus., Inc., 788 F.2d which the plaintiffs litigated this action. 151, 156 (3d Cir.1986)). This consideration, plaintiffs maintain, rep- resents nothing more than an attempt to Southfield and Nine Records, neither of punish Bridgeport and deter the plaintiffs which had an interest in ‘‘Get Off’’ or ‘‘100 from pursuing reasonable, nonfrivolous Miles,’’ argue that defendant did not truly claims in other cases under threat of an prevail against them because they were award of attorney fees. The district court ‘‘inadvertently’’ left in the amended com- reasoned as follows: plaint and they did not oppose dismissal in this case. They did not voluntarily dismiss The initial complaint in this action is so their claims, however, as it was only in voluminous that, with exhibits, it is al- response to defendant’s dispositive motions most 1,000 pages long and takes days to that they acquiesced in dismissal. More- read in its entirety. It is replete with over, the inclusion of Southfield and Nine diatribes against the music industry, but Records in the amended complaint in this lacks concrete facts directed at specific case was less ‘‘inadvertent’’ than a reflec- defendants. Almost all of the 800 or so tion of the plaintiffs’ failure to discriminate defendants in the initial complaint (rep- between defendants and claims. No Limit resenting what appeared to be almost Films is a prevailing defendant as judg- the entirety of entities involved in mak- ment was entered in its favor on all ing urban music) were lumped together 19 claims. Concluding that Bridgeport’s in broad categories and descriptions of claim was objectively unreasonable, the activities. The individual counts de- district court indicated that the factor scribed the infringing conduct of the weighed heavily in favor of awarding fees. defendants by references to these broad The district court, relying on its decision generalizations, without any specific in- granting summary judgment to defendant, formation as to what any individual de- specifically found Bridgeport’s claims were fendant did to violate the Copyright Act. objectively unreasonable because Bridge- port had no ownership interest in ‘‘100 From that inauspicious beginning, this Miles’’ when the oral synchronization li- action proceeded in a like manner, with cense was granted and offered no evidence heavy emphasis on discovery disputes and to undermine the existence of a valid li- motion practice and little attention paid to cense. Bridgeport argues that its claim, narrowing the issues and refining the although unsuccessful, was not objectively claims. The plaintiffs repeatedly taxed the unreasonable because it was not aware No patience of the Court, from narrowing the Limit would claim it had an oral license margins on their memoranda to circum- that preceded the Release and Agreement. vent page limits, to filing voluminous As defendant responds, nothing in this rec- pleadings that were long on argument but

19. Plaintiffs argue that Southfield had a sig- ment claims. That assertion does not affect nificant interest in ‘‘How Ya Do Dat’’ and the prevailing party status of defendant or joined Bridgeport in seeking leave to file the undermine the finding that the claims which second amended complaint to assert infringe- were asserted were objectively unreasonable. 406 383 FEDERAL REPORTER, 3d SERIES short on concrete facts or applicable legal erty factors, and was not required to since authority. The plaintiffs took every op- they are nonexclusive, we see it as related portunity to inundate the Court with pa- to the recognized factor of deterrence and perwork, yet many of these motions were compensation. The unique posture of this hastily prepared and often lacked suffi- case as one of hundreds brought in the cient legal or factual support. Most nota- same manner and asserting parallel claims, bly, the plaintiffs filed a motion for sum- makes deterrence a particularly relevant mary judgment on ownership yet failed to and appropriate consideration. It is not submit certified copies of the registration the deterrence of objectively reasonable certificates for the copyrights they claimed good faith claims, but the interest in moti- to own. When this oversight was pointed vating plaintiffs to sort through the objec- out by the Magistrate Judge as being fatal tively unreasonable ones and prosecute to their summary judgment motion, the this at best cumbersome litigation in a way plaintiffs, instead of providing the docu- that discriminates between parties and mentation (which could be easily obtained claims. from the U.S. Copyright Office), expended Plaintiffs charge that the defendant was enormous effort in subsequent motion pa- equally responsible for multiplying fees, pers trying to convince the Court that the particularly by failing to designate a repre- certified copies were unnecessary [until or- sentative for deposition who had knowl- dered to produce them]. edge of the facts concerning the use of The plaintiffs’ tactics have contributed to ‘‘Get Off’’ in Hook Up. While there is some the multiplication of fees by all parties, suggestion that defendant contributed to including the defendant here. This, com- increased discovery costs because multiple bined with the determination that Bridge- depositions were required, our review is port’s claim was objectively unreasonable, deferential and the record does not demon- merits an award for fees and costs against strate clear error in the district court’s Bridgeport. assessment of plaintiffs’ litigation conduct. To award fees simply because of the Ultimately, we cannot say the district length of and lack of specificity in the court abused its discretion in this case, original complaint or because of the num- particularly given the 50% reduction in ber of claims brought by the plaintiffs attorney fees to account for Westbound’s would strike us as punitive and inconsis- claims. Nor should Southfield and Nine tent with the purposes of the Copyright Records be relieved of the nominal award Act. See Murray Hill, 264 F.3d at 639–40 of fees in this case, as defendant was re- (reversing award of attorney fees, despite quired to investigate whether they had any district court’s criticism of the ‘‘voluminous claim and affirmatively move for dismissal burden’’ the case imposed, noting only that of their claims before it was conceded that the law was unsettled and the plaintiff they had no interest in the copyrighted presented one or more colorable claims). works. The district court’s criticisms go beyond AFFIRMED in part, REVERSED in just that, however, and are tied to conduct part, and REMANDED for further pro- that complicated rather than streamlined ceedings consistent with this opinion. the issues and contributed to the multiplication of fees for the defendant. , While the district court did not articu- late this consideration in terms of the Fog-