United States District Court, D. Oregon, Portland Division
AARON C. REED, an individual, Plaintiff,
EZELLE INVESTMENT PROPERTIES INC., doing business as ezelleinvestmentproperties.com, GLENN D. EZELLE JR., an individual, DOES 1-10 INCLUSIVE, Defendants.
OPINION AND ORDER
YIM YOU, UNITED STATES MAGISTRATE JUDGE
Aaron C. Reed (“Reed”) prevailed in this action
for copyright infringement against defendants Glenn D. Ezelle
Jr. (“Ezelle”) and Ezelle Investment Properties
Inc. (collectively “defendants”). Opinion and
Order, ECF #39. This court awarded statutory damages of $1,
500. Judgment, ECF #40. Reed now moves for costs and
attorney's fees of $11, 255 under 17 U.S.C. § 505.
The court finds the motion appropriate for decision without
oral argument. See FRCP 78(b); LR 7-1(d)(1). For the reasons
set forth below, the motion (ECF #41) is granted, and costs
and attorney's fees are awarded in the amount of $10,
Discretion to Award Fees
court, “in its discretion, ” may allow the
recovery of full costs and award reasonable attorney's
fees as part of those costs to the prevailing party in an
action for copyright infringement. 17 U.S.C. § 505;
Kirtsaeng v. John Wiley & Sons, Inc., 136 S.Ct.
1979, 1985 (2016) (“§ 505 grants courts wide
latitude to award attorney's fees based on the totality
of circumstances in a case”). “[F]ee awards under
§ 505 should encourage the types of lawsuits that
promote . . . encouraging and rewarding authors'
creations while also enabling others to build on that
work.” Kirstaeng, 136 S.Ct. at 1985.
“When a litigant-whether plaintiff or defendant-is
clearly correct, the likelihood that he will recover fees
from the opposing (i.e., unreasonable) party gives him an
incentive to litigate the case all the way to the end.”
Id. Thus, “[t]he holder of a copyright that
has obviously been infringed has good reason to bring and
maintain a suit even if the damages at stake are small. . .
Court and Ninth Circuit precedent guide this exercise of
discretion. Id. at 1984-85; Glacier Films (USA),
Inc. v. Turchin, 896 F.3d 1033, 1037 (9th Cir. 2018)
(explaining that the court's “discretion must
remain tethered to judicial guideposts”). To determine
whether to award fees, courts consider “frivolousness,
motivation, objective unreasonableness (both in the factual
and in the legal components of the case) and the need in
particular circumstances to advance considerations of
compensation and deterrence.” Glacier Films,
896 F.3d at 1037 (citing Fogerty v. Fantasy, Inc.,
510 U.S. 517, 534 n.19 (1994)). Substantial weight should be
accorded to the reasonableness of the losing party's
legal and factual arguments. Shame On You Prods., Inc. v.
Banks, 893 F.3d 661, 666 (9th Cir. 2018). Courts also
should consider the “degree of success obtained in the
litigation, the purposes of the Copyright Act, and
‘whether the chilling effect of attorney's fees may
be too great or impose an inequitable burden on an
impecunious litigant.'” Id. (citing
Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657,
675 (9th Cir. 2017) (alteration omitted).
Degree of Success Obtained
obtained total success on the merits. See Glacier
Films, 896 F.3d at 1038 (quoting Maljack Prods.,
Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 890
(9th Cir. 1996)). While the court awarded $1, 500 in
statutory damages, only about ten percent of the amount
plaintiff sought (see Opinion and Order 6, 19, ECF #39), any
award of statutory damages is a complete victory as
“[a]ctual success in an infringement action involves
establishing the defendant's liability.” Glacier
Films, 896 F.3d at 1038 (citing Wall Data Inc. v. Los
Angeles Cty. Sheriff's Dep't, 447 F.3d 769, 787
(9th Cir. 2006)). Defendants stipulated to facts conclusively
establishing their liability for direct copyright
infringement and offered no substantive affirmative defenses
to the infringement (e.g., fair use, exhaustion, de minimis
use). Resp. 4-5, ECF #31. Unless the court found that the
parties had entered into a binding settlement agreement,
plaintiff was entitled to prevail.
argue not only that plaintiff's motion for fees should be
denied, but that they should be awarded fees because the
amount of statutory damages awarded more closely aligns with
their value of the case. Defs' Resp. to Mot. for
Attorney's Fees 5, ECF #42 (“Defs'
Resp.”). Indeed, defendants made a Rule-68 offer of $1,
100, only $400 less than the judgment awarded, while
plaintiff demanded up to $20, 000 before litigation ensued
and $40, 000 after that to settle the case. Decl. of David
Brown ¶ 6, ECF #43. However, despite plaintiff's
purported overvaluation, success depends on liability, not
the amount of statutory damages recovered. Glacier
Films, 896 F.3d at 1038.
to Advance Compensation and Deterrence
assertion that “Ezelle has had a painful
education” is well taken. Defs' Resp. 6, ECF #42.
The $1, 500 award of statutory damages is enough to deter
defendants from additional infringement.
this amount is insufficient to compensate Reed for his
legitimate efforts in enforcing his valid copyrights. Reed
has incurred attorney's fees and costs to recover
statutory damages. See Assessment Techs. of WI, LLC v.
WIREdata, Inc., 361 F.3d 434, 437 (7th Cir. 2004)
(“[A]n award of attorneys' fees may be necessary to
enable the party possessing the meritorious claim or defense
to press it to a successful conclusion rather than surrender
it because the cost of vindication exceeds the private
benefit to the party.”); Oracle USA, Inc. v. Rimini
St., Inc., 324 F.Supp.3d 1157, 1170 (D. Nev. 2018)
(“Without a fee award, the court finds that
[plaintiff's] investment in its intellectual property and
its incentive to create future [works] would not be
appropriately protected or compensated.”). Thus, while
an award of attorney's fees is not needed to deter Ezelle
from further copyright infringement, it is necessary to
compensate Reed for pursuing a meritorious claim.
Objective Unreasonableness and Frivolousness
lawsuit is not frivolous. Ezelle conceded liability to
copyright infringement at the outset. His only arguments to
the contrary were premised on the notion that the parties had
entered into a binding settlement agreement for $1, 000. As
discussed in this ...