United States District Court, D. Oregon
Mansfield and Megan Vaniman, Harris Bricken, Attorneys for
H. Madden, Mersenne Law, Attorneys for Defendant.
OPINION AND ORDER
Michael H. Simon, District Judge
Fathers & Daughters Nevada, LLC (“F&D”)
sued Defendant Lingfu Zhang (“Zhang”), alleging
that Zhang copied and distributed F&D's motion
picture Fathers & Daughters through a public
BitTorrent network in violation of F&D's exclusive
rights under the Copyright Act. The Court granted Zhang's
motion for summary judgment, finding that F&D did not
present evidence raising a genuine dispute as to any material
fact regarding whether F&D was a beneficial owner or
legal owner of the relevant exclusive rights in the
Fathers & Daughters copyright. Zhang
now moves the Court for attorney's fees and costs under
Section 505 of the Copyright Act and Rule 68 of the Federal
Rules of Civil Procedure. F&D objects, arguing that Zhang
is not entitled to attorney's fees under the Copyright
Act and thus is not entitled to fees under Rule 68. F&D
also objects that if Zhang is entitled to fees, the amount
requested is unreasonable. For the reasons discussed below,
Zhang's motion is granted in part.
505 of the Copyright Act provides:
In any civil action under this title, the court in its
discretion may allow the recovery of full costs by or against
any party other than the United States or an officer thereof.
Except as otherwise provided by this title, the court may
also award a reasonable attorney's fee to the prevailing
party as part of the costs.
17 U.S.C. § 505.
U.S. Supreme Court has recognized the “broad
leeway” this provision grants district courts in
considering fee petitions, noting that the statutory text
“eschews any ‘precise rule or formula' for
awarding fees.” Kirtsaeng v. John Wiley & Sons,
Inc., 136 S.Ct. 1979, 1985 (2016) (quoting Fogerty
v. Fantasy, Inc., 510 U.S. 517, 534 (1994)).
Nonetheless, the Supreme Court has held that fees should not
be granted as a matter of course but should be considered on
a case-by-case basis, and that “a court may not treat
prevailing plaintiffs and prevailing defendants any
differently; defendants should be ‘encouraged to
litigate [meritorious copyright defenses] to the same extent
that plaintiffs are encouraged to litigate meritorious claims
of infringement.'” Id. (quoting
Fogerty, 510 U.S. at 527) (alterations in original).
Supreme Court also “noted with approval ‘several
nonexclusive factors' to inform a court's
fee-shifting decisions: ‘frivolousness, motivation,
objective unreasonableness[, ] and the need in particular
circumstances to advance considerations of compensation and
deterrence.'” Id. (quoting
Fogerty, 510 U.S. at 534 n.19) (alterations in
original). Of these, a court should give substantial weight
to the reasonableness or unreasonableness of the underlying
litigation positions of the party opposing the fee award, but
must still take into account all other relevant factors.
Id. at 1989. “[O]bjective reasonableness can
be only an important factor in assessing fee applications-not
the controlling one.” Id. at 1988. Generally,
because there is no explicit limit or condition placed on the
district court in Section 505, a district court should
consider whether the objective and purpose of the Copyright
Act is being furthered by granting the requested fee award.
Id. at 1986. “[C]opyright law ultimately
serves the purpose of enriching the general public through
access to creative works.” Fogerty, 510 U.S.
district court's disposition of a motion for
attorney's fees must “provide a reasonably specific
explanation for all aspects of a fee determination” in
order to allow for “adequate appellate review.”
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 558
(2010). The preferred method of calculating reasonable
attorney's fees is the “lodestar” method.
Id. at 551-52. This is because “the lodestar
method produces an award that roughly approximates
the fee that the prevailing attorney would have received if
he or she had been representing a paying client who was
billed by the hour in a comparable case, ” is
“readily administrable, ” and is
“objective.” Id. (emphasis in original).
Additionally, one purpose of federal fee-shifting statutes is
to ensure that a prevailing plaintiff's counsel receive a
fee that is “sufficient to induce a capable attorney to
undertake the representation of a meritorious . . .
case.” Id. at 552. The lodestar method of
calculating attorney's fees “yields a fee that is
presumptively sufficient to achieve this objective.”
Id. Although the lodestar calculation results in a
presumptively reasonable fee, this fee may be adjusted in
certain circumstances. Id.
lodestar amount is the product of the number of hours
reasonably spent on the litigation multiplied by a reasonable
hourly rate. McCown v. City of Fontana, 565 F.3d
1097, 1102 (9th Cir. 2009). In making this calculation, the
district court should take into consideration various factors
of reasonableness, including the quality of an attorney's
performance, the results obtained, the novelty and complexity
of a case, and the special skill and experience of counsel.
See Perdue, 559 U.S. at 553-54; Gonzalez v. City
of Maywood, 729 F.3d 1196, 1209 n.11 (9th Cir. 2013).
determining the number of hours reasonably spent, “the
district court should exclude hours ‘that are
excessive, redundant, or otherwise unnecessary.'”
McCown, 565 F.3d at 1102 (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). The party seeking
an award of attorney's fees “has the burden of
submitting billing records to establish that the number of
hours it has requested [is] reasonable.”
Gonzalez, 729 F.3d at 1202.
district court may determine, in one of two ways, whether
hours are excessive, redundant, or otherwise unnecessary, and
thus excludable. The court may conduct an hour-by-hour
analysis of the fee request. Id. at 1203.
Alternatively, “when faced with a massive fee
application the district court has the authority to make
across-the-board percentage cuts either in the number of
hours claimed or in the final lodestar figure.”
Id. (quoting Gates v. Deukmejian, 987 F.2d
1392, 1399 (9th Cir. 1992) (quotation marks omitted)).
“[W]hen a district court decides that a percentage cut
(to either the lodestar or the number of hours) is warranted,
it must ‘set forth a concise but clear explanation of
its reasons for choosing a given percentage
reduction.'” Id. (quoting Gates,
987 F.2d at 1400). The Ninth Circuit recognizes one exception
to this rule: “‘[T]he district court can impose a