379 F.3d 348 | 6th Cir. | 2004
Before: MARTIN and SUTTON, Circuit Judges;
HOLSCHUH, District Judge. [*] UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT _________________ COUNSEL ARGUED: W. Gary Blackburn, BLACKBURN & F RANK P. F OGERTY and (cid:88) McCUNE, Nashville, Tennessee, Adam Siegler, THE (cid:45) N ATHAN C ROW , SIEGLER LAW GROUP, Beverly Hills, California, for (cid:45) Plaintiffs-Appellants, Appellants. Timothy L. Warnock, BOWEN, RILEY, (cid:45) Nos. 03-5498/5874 WARNOCK & JACOBSON, Nashville, Tennessee, for (cid:45) > v. Appellees. ON BRIEF: W. Gary Blackburn, BLACKBURN (cid:44) & McCUNE, Nashville, Tennessee, Adam Siegler, THE (cid:45) SIEGLER LAW GROUP, Beverly Hills, California, for MGM G ROUP H OLDINGS (cid:45) Appellants. Timothy L. Warnock, Jay S. Bowen, BOWEN, C ORP ., I NC ., d/b/a MGM (cid:45) RILEY, WARNOCK & JACOBSON, Nashville, Tennessee, (cid:45) U NIVERSAL M USIC G ROUP , for Appellees. (cid:45) I NC ., U NIVERSAL S TUDIOS , (cid:45) _________________ I NC ., and EON P RODUCTIONS , (cid:45) L TD ., (cid:45) OPINION Defendants-Appellees. (cid:45) _________________ (cid:45) (cid:45)
SUTTON, Circuit Judge. Plaintiffs Frank P. Fogerty and (cid:45) Nathan Crow appeal the district court’s order granting (cid:78) summary judgment and awarding attorneys’ fees to defendants (collectively, “MGM”) in this copyright
Appeal from the United States District Court infringement case. As we agree with the district court that for the Middle District of Tennessee at Nashville. plaintiffs have not presented a sustainable theory of relief, we No. 01-00158—William J. Haynes, Jr., District Judge. affirm that ruling. As we disagree with the district court’s award of attorneys’ fees, we reverse that ruling.
Argued: June 9, 2004 Decided and Filed: August 3, 2004 producers of the James Bond films and principals of Eon In early January 1999, Arnold completed the song and Productions, Ltd., sought a composer to write the musical created a “demo” recording of it on his computer at his score for the nineteenth Bond film—“The World Is Not private recording studio. Arnold’s computer shows Enough.” In September 1998, Wilson and Broccoli selected January 6, 1999 as the last day he modified the demo David Arnold, a London-based composer, a Grammy award recording. winner for the musical score for “Independence Day,” and the At roughly this time, Arnold played “The World Is Not author of the end theme song for the Bond film “Tomorrow Enough” for Michael Wilson and Barbara Broccoli, the Never Dies.” Arnold maintains a private recording studio in producers of the upcoming film. They liked the song. On London, where he composed the theme song and gave it the
January 8, 1999, Arnold traveled to Pinewood Studios in same name as the film. In writing the song, Arnold England and played the song for Michael Apted, the director collaborated with lyricist Don Black, who also lives in of “The World Is Not Enough,” who “was extremely pleased London and who has written the lyrics to the theme songs for with [the song].” JA 233. four previous Bond films. Arnold and Black met several times in November and December of 1998 to discuss the
Arnold next asked Trish Hillis to deliver a copy of the lyrics for “The World Is Not Enough,” and they exchanged demo to Shirley Manson, who (as noted) had agreed to record phone calls, faxes and e-mails during that time in the song. On January 19, Hillis’s phone log shows that she collaborating on the song. contacted Ian Wesley, the general manager of Mushroom Records, Garbage’s record label. Wesley told Hillis that Arnold also contacted Shirley Manson, the Scottish-born Manson was staying at the Royal Garden Hotel in London lead singer for the rock-group “Garbage,” and asked her to and to deliver the recording to the hotel at 10 a.m. the next record the song. She agreed. day. On January 20, after Hillis arrived at the Royal Garden Between late October and November of 1998, Arnold Hotel, she called Harold Kohl, Garbage’s tour manager, who played the melody of “The World Is Not Enough” over the told her to leave the recording at the front desk. A bill from phone to his personal assistant Trish Hillis, before whom he the Royal Garden Hotel indicates that Shirley Manson stayed often informally auditioned his songs. According to Arnold, there on January 20, 1999, and Manson later recalled he “strung some la-la’s together, and all of a sudden the receiving the song from Kohl in January 1999 while staying [song] came to life, and [he] thought [that was] probably it.” at the hotel. JA 229. On December 26, 1998, Arnold again played “The Arnold next sent a recording of the song to his American World Is Not Enough” for Hillis, this time on a piano at his
agent, Vas Vangelos, who lives in Los Angeles. An invoice London home. When Arnold played the music for Hillis, he shows that Air Studios billed Eon Productions for a shipment had completed the song and lyrics, save for the bridge—a to Vangelos on February 2, 1999. Michael Sandoval, then an brief transition of approximately eight bars in the middle of executive vice president at MGM, requested a copy of “The the song. In December 1998, Arnold also played the melody
World Is Not Enough” from Vangelos. Sandoval received Nos. 03-5498/5874 Fogerty, et al. v. MGM 5 6 Fogerty, et al. v. MGM Nos. 03-5498/5874 Group Holdings Corp., et al. Group Holdings Corp., et al. “The World Is Not Enough” on February 4, 1999, and he Middle District of Tennessee. The parties conducted played the song for other MGM executives. No one discovery, and MGM moved for summary judgment, apparently liked the song initially because it was a ballad and claiming that the undisputed facts showed that Arnold because they had hoped for a theme song with a different independently created “The World Is Not Enough.” tempo.
The district court granted MGM’s motion, concluding that On the same day (February 4, 1999), Nathan Crow visited Arnold had independently written the tune to the song: Michael Sandoval at MGM and delivered a recording of his Defendants and composers of [“The World Is Not song “This Game We Play,” which he had co-written with Enough”] did not have access to [“This Game We Play”] Frank P. Fogerty. According to Crow, Sandoval liked the [through] any of the avenues postulated by Plaintiffs song, suggested that he might consider it for the 1999 film because a review of the record indicates that the melody “The Thomas Crown Affair” and kept a copy of the
and significant portions of [“The World Is Not Enough”] recording. Arnold’s “The World Is Not Enough,” it turns out, . . . were completed prior to the dates that any alleged shares an identical four-note sequence with Crow’s “This access by Defendants to [“This Game We Play”] could Game We Play.”
have occurred. Before Manson recorded the commercial version of “The D. Ct. Op. at 17 (Mar. 14, 2003). The district court also World Is Not Enough,” MGM contacted Arnold in March of rejected plaintiffs’ alternative claim that the two songs are 1999 and suggested that a “three-note motif” in “The World “strikingly similar,” an independent theory of liability that Is Not Enough” was too similar to a motif in earlier Bond warrants relief even when the plaintiff cannot prove access. theme songs. Arnold agreed to remove the three-note Id. at 19–20. “There is no evidence adduced by Plaintiffs,” sequence, which all agree is unrelated to the four-note
the court concluded, “to support the proposition that the two sequence that “This Game We Play” and “The World Is Not works are so strikingly similar that copying is the only Enough” have in common. plausible explanation of the similarities.” Id. at 20. In June and August of 1999, Shirley Manson and her band In the aftermath of this ruling, MGM moved for attorneys’ recorded “The World Is Not Enough.” Manson requested one fees under § 505 of the Copyright Act, 17 U.S.C. § 505, and lyrical change in the song because the line—“I know when to for nontaxable costs under Federal Rule of Civil Procedure kiss and I know when to kill”—did not meet her tastes. JA 54(d). Alleging that plaintiffs’ claims were “objectively 228. Arnold and Black changed the lyrics, and she completed unreasonable,” MGM sought $170,519 in attorneys’ fees and the recording.
$11,647.60 in non-taxable costs. The district court granted II. MGM’s motion for attorneys’ fees “in the interests of justice and in furtherance of the objectives of the Copyright Act.” D. Convinced that Arnold and MGM had copied the four-note Ct. Op. at 8 (June 17, 2003). “Plaintiffs[’] claims were sequence from “This Game We Play” in composing “The objectively unreasonable,” the district court observed, “in that World Is Not Enough,” Fogerty and Crow filed a copyright Plaintiffs pursued litigation despite multiple third-party infringement action in the United States District Court for the declarations establishing independent creation of [“The World Nos. 03-5498/5874 Fogerty, et al. v. MGM 7 8 Fogerty, et al. v. MGM Nos. 03-5498/5874 Group Holdings Corp., et al. Group Holdings Corp., et al. Is Not Enough”] before any of the Defendants had access to claim of copyright infringement requires proof of Plaintiffs’ original work,” and “Plaintiffs offered no direct “(1) ownership of a valid copyright, and (2) copying of evidence to support one of the two basic elements of constituent elements of the work that are original.” Feist copyright infringement.” Id. at 8–9. The district court, Publ’ns, Inc. v. Rural Tel. Serv. Co. , 499 U.S. 340, 361 however, “conclude[d] that a 30% reduction in the billed (1991); see also Ellis v. Diffie , 177 F.3d 503, 506 (6th Cir. hours . . . is appropriate . . . in light of the overstaffing of this 1999). litigation, the redundant billing, and vague entries on the Because claimants rarely have direct evidence of copying, firm’s invoices,” id. at 15, and awarded MGM $85,507.16 in they typically try to establish an inference of copying by attorneys’ fees, id. at 19. Holding that fees for “(1) legal showing “(1) access to the allegedly-infringed work by the research; (2) federal express charges; (3) messenger service;
defendant(s) and (2) a substantial similarity between the two (4) phone/telecopy; (5) postage; (6) out of town travel; and works at issue.” Ellis , 177 F.3d at 506 . “Access,” we have (7) copies” were not allowable, the district court denied held, “is essentially hearing or having a reasonable MGM’s request for nontaxable costs of $11,647.60. Id. at 20. opportunity to hear the plaintiff[s’] work and thus having the For routine taxable costs, the district court awarded opportunity to copy” and “may not be inferred through mere $4,847.58. Id. at 23.
speculation or conjecture.” Id. (quotations omitted). The III. “substantial similarity” analysis first requires a filtering of the unprotectable aspects of the protected work, then asks Summary judgment is appropriate when “the pleadings, whether an “ordinary observer” would perceive the original depositions, answers to interrogatories, and admissions on and the alleged copy as substantially similar. See Kohus v. file, together with the affidavits, if any, show that there is no Mariol , 328 F.3d 848, 855–57 (6th Cir. 2003). Once a genuine issue as to any material fact and that the moving
plaintiff establishes access and substantial similarity, the party is entitled to judgment as a matter of law.” Fed. R. Civ. defendant may rebut the presumption of copying by showing P. 56(c). “Where the record taken as a whole could not lead independent creation of the allegedly infringing work. Ellis , a rational trier of fact to find for the non-moving party,” the 177 F.3d at 507; see also Susan Wakeen Doll Co. v. Ashton Supreme Court has held, “there is no genuine issue for trial.” Drake Galleries , 272 F.3d 441, 450 (7th Cir. 2001). Lastly, Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. even without proof of access, a plaintiff still may prevail by 574, 587 (1986) (quotation omitted). A district court’s showing a “striking similarity [between the works], summary-judgment decision receives de novo review. See precluding all possible conclusion but that the work was Farhat v. Jopke , 370 F.3d 580, 587 (6th Cir. 2004).
copied.” Murray Hill Publ’ns, Inc. v. Twentieth Century Fox Film Corp. , 361 F.3d 312, 325 (6th Cir. 2004).
The Copyright Act gives copyright owners exclusive rights to reproduce, prepare derivative works from, distribute, and In applying these principles to this case, the parties share publicly perform or display a copyrighted work. See 17 considerable common ground. MGM does not dispute that U.S.C. § 106. To the ends of protecting these rights, the Act Fogerty and Crow own a valid copyright in “This Game We allows “[t]he legal or beneficial owner of an exclusive right Play,” and plaintiffs concede that they failed to produce direct under a copyright . . . to institute an action for any evidence of copying. For purposes of this appeal, the parties infringement of that particular right.” 17 U.S.C. § 501(b). A also agree that Fogerty and Crow proved that MGM had Nos. 03-5498/5874 Fogerty, et al. v. MGM 9 10 Fogerty, et al. v. MGM Nos. 03-5498/5874
Group Holdings Corp., et al. Group Holdings Corp., et al. access to their work after February 4, 1999, and that the two Aside from a lyrical change to the song (the removal of one songs are substantially, but not strikingly, similar. line to accommodate Shirley Manson) and one change to the
score (the removal of the “three-note motif” to accommodate The question under these circumstances is whether David the MGM executives), the witnesses that testified or gave Arnold independently created “The World Is Not Enough” declarations agree that the song they heard before February 4, before February 4, 1999, and whether the undisputed 1999 did not otherwise change after that date. In the face of evidence establishes that fact. We believe it does. this evidence that Arnold and Black independently created
“The World Is Not Enough” before MGM first had access to Fogerty and Crow concede that David Arnold did not have “This Game We Play” on February 4, 1999, plaintiffs raise a access to “This Game We Play” until Crow delivered a series of arguments designed to show that they nonetheless recording of the song to Michael Sandoval at MGM on should be able to present their claim to a jury. Each is February 4, 1999. Before that date, deposition testimony and unconvincing. personal calendar entries show that David Arnold and Don Black collaborated on “The World Is Not Enough” in
First, they suggest that they can respond to this evidence November and December 1998. Arnold performed the song simply by claiming that a jury might choose to disregard it or twice for his personal assistant Trish Hillis between October might find it unpersuasive. That is not true. See Cox v. Ky. and December of 1998. He also performed the song for Geoff Dep’t of Transp. 53 F.3d 146, 150 (6th Cir. 1995) (“[A] Foster and Isabel Griffiths of Air Studios in December 1998, nonmoving party may not avoid a properly supported motion and the film producers Barbara Broccoli and Michael Wilson for summary judgment by simply arguing that it relies solely heard the song in early January 1999. Arnold also made a or in part upon credibility considerations . . . . [I]nstead, the demo recording of the song, and his personal computer at Air nonmoving party must present affirmative evidence to defeat Studios indicates that he last modified the recording on
a properly supported motion for summary judgment.”); Curl January 6, 1999. The next day, Arnold delivered a copy of v. Int’l Bus. Machs. Corp. , 517 F.2d 212, 214 (5th Cir. 1975) the song to Pinewood Studios where the film’s director, (“[T]he party opposing summary judgment must be able to Michael Apted, listened to the song. point to some facts which may or will entitle him to
judgment, or refute the proof of the moving party in some Arnold and Hillis also testified that Hillis delivered a copy material portion, and . . . the opposing party may not merely of the recording to the Royal Garden Hotel in London where recite the incantation, ‘Credibility,’ and have a trial on the Shirley Manson was staying. Hillis produced her phone log hope that a jury may disbelieve factually uncontested proof.”) showing that she made several calls concerning the delivery (quotation omitted); Eaton v. Nat’l Broad. Co. , 972 F. Supp. on January 19, 1999, and her personal calendar indicated that 1019, 1024 (E.D. Va. 1997) (“[A] copyright plaintiff cannot she planned to go there on January 20 to deliver Arnold’s base her opposition to summary judgment entirely on the song. MGM also produced a hotel receipt indicating that hope that a fact finder will disbelieve the persons who have Shirley Manson stayed at the Royal Garden Hotel on January submitted affidavits on issues of access.”); cf . Matsushita , 20. Hillis testified in her deposition that she left the recording 475 U.S. at 586 (“When the moving party has carried its at the hotel desk for Harold Kohl, Garbage’s tour manager, burden under Rule 56(c), its opponent must do more than and Manson recalled receiving the recording from Kohl at the simply show that there is some metaphysical doubt as to the hotel. material facts.”) (footnote omitted). Nos. 03-5498/5874 Fogerty, et al. v. MGM 11 12 Fogerty, et al. v. MGM Nos. 03-5498/5874 Group Holdings Corp., et al. Group Holdings Corp., et al. Second, in the absence of affirmative evidence rebutting Fogerty and Crow point to one other alleged discrepancy MGM’s pre-access chain of events, plaintiffs claim that between Arnold’s and Black’s testimony that deserves inconsistencies in MGM’s evidence by themselves create a mention. Posturing as someone working with James Horner, genuine issue of material fact. They note, for example, that the composer of the “Titanic” sound track, Crow contacted MGM executives disliked “The World Is Not Enough” but Don Black by phone and asked whether Black would be liked “This Game We Play” in early February 1999. The interested in writing the song lyrics for the film “Oceans 11.” different reactions, plaintiffs urge, show that the two songs During the tape-recorded conversation, Crow asked Black were not substantially similar on February 4, 1999, and show questions about “The World Is Not Enough,” including when that Arnold must have copied “This Game We Play” after he received the song to write the lyrics. Black, who later February 4, 1999 because the songs are substantially similar explained that he was trying to impress someone whom he today. Too many competing inferences, however, separate believed to be a major composer, indicated that he received this premise from plaintiffs’ proposed conclusion. Fogerty the song approximately two months before the movie’s and Crow neglect to mention that MGM executives listened release date, which was December 1999. As Crow admitted to each song for different reasons—in Arnold’s case to (after the phone call), “the entire thing [was] deceptive . . . determine if the song would work for the new Bond film, in [and] intentional[],” JA 310, because he was trying “to trick plaintiffs’ case to see if their song would work for another them into telling [him] the truth,” JA 311. film. Because the MGM executives listened to each song in The Federal Rules of Civil Procedure do not provide for different musical, artistic and commercial contexts—with one
this form of discovery. And it is not clear whether the Federal solicited for the Bond movie and the other unsolicited and at Rules of Evidence would permit the admission of such a most considered for another film—this theory of infringement phone call. But even assuming the admissibility of this is too speculative to warrant a jury trial on its own. evidence and even assuming that Fogerty and Crow would Fogerty and Crow next scrutinize Arnold’s and Black’s unveil this antic to a jury, the statement at issue—that Black testimony. Arnold’s declaration indicates that he made “an (the lyricist) purportedly received the music to the song just initial demonstration recording” of the “The World Is Not two months before its release—does not establish a Enough” on January 6, 1999. Black’s declaration, however, cognizable cause of action. In order to credit this statement, indicates that he made a recording with Arnold in November a jury would have to believe that Black wrote the lyrics to or December 1998. Neither version of events, however, “The World Is Not Enough” in October 1999—two months places creation of the demo recording after February 4, 1999. after Garbage finished commercially recording the song. No A factfinder could believe Arnold; it could believe Black; or rational trier of fact could rely on this statement in finding for it could believe parts of each individual’s testimony. But it Fogerty and Crow. could not rationally come to the conclusion that the recording Plaintiffs next point to several letters written by Trish Hillis was made after February 4, 1999, especially in light of to individuals seeking to collaborate with David Arnold while plaintiffs’ inability to refute the delivery of a recording of the he composed the musical score for “The World Is Not song to Manson at the Royal Garden Hotel on January 20, Enough.” The nub of these letters is that Arnold continued 1999.
working on the musical score for the entire movie after the February 4, 1999 date of access. Absent from the letters,
Nos. 03-5498/5874 Fogerty, et al. v. MGM 13 14 Fogerty, et al. v. MGM Nos. 03-5498/5874 Group Holdings Corp., et al. Group Holdings Corp., et al. however, is any reference to the theme song, which is all that commercially recording the song until that date, the parties do is at issue here. The most potent letter, dated April 16, 1999, not dispute that the first recording session of the song reads: “[Arnold] has also been commissioned to write both occurred in June 1999. In other words, to believe plaintiffs’ [the theme and end] songs, which were finished a few weeks interpretation of Manson’s statement, a jury would have to ago.” JA 594. At most, however, this statement shows that conclude that Manson first heard “The World Is Not Enough” both songs (as opposed to only “The World Is Not Enough”) two months after she began recording the song. No rational were not complete until after February 4, 1999, which does jury would accept that sequence of events. not create a fact dispute that the theme song had not been Fogerty and Crow next take aim at the declarations of completed before that date.
Wilson and Broccoli. In their declarations, Wilson and Shirley Manson’s testimony also contains several Broccoli noted that “[a]side from some minor lyrical changes, inconsistencies, none of which casts doubt on MGM’s claim the song David played us in his attic room that day was the of independent creation. Manson and Arnold failed to recall same song we ultimately recorded for the film,” but failed to consistently the details of when Manson first heard the song mention that Arnold later removed the “three-note motif” that and when she and Arnold first communicated after she heard the initial recording of the music shared with earlier Bond the song. In his declaration, Arnold claimed that he spoke songs. This oversight, according to plaintiffs, makes the with Manson on the phone January 20, 1999 (the day Hillis declarations unreliable. We are not persuaded. The change delivered the song to the Royal Garden Hotel) and that she was a minor one; it had nothing to do with the four-note loved the song. In Arnold’s deposition, he said that he sequence that parallels “This Game We Play”; and it does not received an e-mail from Manson on an unknown date. alter the fact that Arnold played “The World Is Not Enough” Manson essentially could not recall when she first listened to for others (including Wilson and Broccoli in early January the demo recording and had “no idea” if she listened to it 1999) well before the date of access. prior to February 4, 1999. JA 215. But these inconsistencies The dates of the contracts between Arnold, Black and do not alter the unrefuted evidence that Hillis left a copy of MGM also have little value. True, each written contract went the song for Manson at the Royal Garden Hotel on January into effect after February 4, 1999. But the undisputed 20, 1999, and that it was this copy of the song that Manson evidence shows that Wilson and Broccoli selected David eventually heard. In this setting, the district court’s decision Arnold to write the musical score for “The World Is Not to disregard the inconsistencies in Manson’s other testimony Enough” in September 1998. And in his own deposition, does not amount to an improper weighing of the evidence.
Crow acknowledges that on February 4, 1999, when he met See Street v. J.C. Bradford & Co. , 886 F.2d 1472, 1480 (6th with Sandoval of MGM, Sandoval told him that Arnold had Cir.1989) (“The trial court has at least some discretion [at a “lock on this,” JA 299, “that Mr. Arnold had been hired to summary judgment] to determine whether [plaintiffs’] claim write an original score for the film,” JA 298, and that “Mr. is ‘implausible.’”).
Sandoval made it very clear that Mr. Arnold had been hired Crow also made a false-pretenses phone call to Shirley to write the score,” id. Manson, much like the one he made to Don Black. During Plaintiffs also point to the fact that Arnold never produced the call, Manson indicated that she first received the song in the demo recording that he made on January 6, 1999. Arnold August of 1999. While Manson’s band did not finish Nos. 03-5498/5874 Fogerty, et al. v. MGM 15 16 Fogerty, et al. v. MGM Nos. 03-5498/5874
Group Holdings Corp., et al. Group Holdings Corp., et al. testified that his computer at Air Studios showed that he last IV. modified the recording on January 6, 1999, but offered no
Plaintiffs next argue that even if it was appropriate to grant explanation as to why he could not produce a recording. summary judgment, the district court erred in awarding fees According to Fogerty and Crow, “a party having control of to MGM. We agree. information bearing upon a disputed issue may be given the burden of bringing it forward and suffering an adverse
Section 505 of the Copyright Act provides: inference from [the] failure to do so.” Appellant Br. at 21. Here, however, MGM is the party, not David Arnold, and it
In any civil action under this title, the court in its did produce an original copy of the demo recording from Don discretion may allow the recovery of full costs by or Black. Plaintiffs do not refute the authenticity of Black’s against any party other than the United States or an copy of the song, and at all events never explain why they did officer thereof. Except as otherwise provided by this not seek discovery of Arnold’s computer to determine if the title, the court may also award a reasonable attorney's fee January 6th demo could still be retrieved. to the prevailing party as part of the costs. Fogerty and Crow, lastly, question the reliability of MGM’s 17 U.S.C. § 505. Under this provision, a district court may declarations based on the “excessive hours spent” in drafting “impose attorney[s’] fees in frivolous and objectively them. Appellant Br. at 22. MGM’s attorneys “spent unreasonable lawsuits.” Murray Hill Publ’ns, Inc. v. ABC approximately 80 hours drafting and revising these Communications, Inc. , 264 F.3d 622, 639 (6th Cir. 2001). A declarations,” plaintiffs argue, and “[i]t does not take 80 hours district court’s decision to award attorneys’ fees should be to write a few pages of the truth.” Id. at 22–23. But this based on such factors as “[the] frivolousness of the claim,” argument does not prove that the affidavits are false or even the “motivation” of the claimant, the “reasonableness” of the suggest as much. Whether the scrivener of the affidavits was claim and the goal of “deterr[ing]” frivolous claims. Coles v. quite deliberate, was inefficient or merely was confronted Wonder , 283 F.3d 798, 804 (6th Cir. 2002). We review a with a voluminous record, extensive time in drafting district court’s decision to grant or deny fees for an abuse of affidavits (or even excessive time in drafting them) does not discretion. ABC Communications , Inc. , 264 F.3d at 639. indicate that they are false. While plaintiffs’ claim ultimately proved meritless, that does not make it “objectively unreasonable” as a matter of law or fact. See id. at 639–40 (reversing an award of attorneys’ fees under 17 U.S.C. § 505 because “at the time [the] litigation was before the district court, the law on certain relevant aspects of [the] lawsuit was unsettled”); cf. Protective Life Ins. Co. v. Dignity Viatical Settlement Partners, L.P. , 171 F.3d 52, 58 (1st Cir. 1999) (“The mere fact that a claim ultimately proves unavailing, without more, cannot support the imposition of Rule 11 sanctions.”). At the time Fogerty and Crow filed their complaint, they knew only
Nos. 03-5498/5874 Fogerty, et al. v. MGM 17 18 Fogerty, et al. v. MGM Nos. 03-5498/5874 Group Holdings Corp., et al. Group Holdings Corp., et al. that Crow delivered “This Game We Play” to Michael depose the individuals and determine whether their Sandoval and, ten months later, MGM used a very similar recollections of the facts collectively made sense. song as the theme song for “The World Is Not Enough.”
The second factor offered by the district court is no more Nowhere does MGM contend that filing a complaint on this persuasive: “Plaintiffs offered no direct evidence to support basis was objectively unreasonable. See Matthew Bender & one of the two basic elements of copyright infringement.” Id. Co. v. West Publ’g Co. , 240 F.3d 116, 122 (2d Cir. 2001) at 8–9. This ambiguous reference points to one of two things. (“[T]he imposition of a fee award against a copyright holder Either plaintiffs failed to produce direct evidence of copying with an objectively reasonable litigation position will or plaintiffs failed to provide evidence of access (they did generally not promote the purposes of the Copyright Act.”).
provide an expert’s opinion that the songs were substantially As discovery progressed, other facts surfaced that similar). As to the former explanation, direct evidence of legitimately prompted plaintiffs to pursue their claim. They copying is a rarity and accordingly the failure to provide such obtained an expert opinion that the two songs were evidence by itself never supplies an independent basis for substantially similar; they learned—quite remarkably—that awarding attorneys’ fees. See Ellis , 177 F.3d at 506 (“Direct Crow delivered his song to an MGM executive (Sandoval) on evidence of copying is rare, so frequently the plaintiff will the same day that Arnold delivered his song to Sandoval; they attempt to establish an inference of copying [with indirect learned that Arnold could not produce a demo of the January evidence].”); see also Segrets, Inc. v. Gillman Knitwear Co. , 6, 1999 version of the song; and they learned of 207 F.3d 56, 61 (1st Cir. 2000); Arica Inst., Inc. v. Palmer , inconsistencies in Manson’s and Arnold’s recollections of 970 F.2d 1067, 1072 (2d Cir. 1992); Narell v. Freeman , 872 when Manson first heard “The World Is Not Enough” and F.2d 907, 910 (9th Cir. 1989). communicated her comments to Arnold. All told, this
As to the latter explanation, it was not until after the evidence gave plaintiffs objectively legitimate reasons for completion of discovery that the district court could have pursuing discovery in the case and for seeing the case through reached the conclusion that plaintiffs failed to provide to summary judgment.
evidence of access. See Williamson v. United States Dep’t of The two reasons given by the district court for awarding Agric. , 815 F.2d 368, 373 (5th Cir. 1987) (“[I]f discovery fees do not alter this conclusion. The court first noted that could uncover one or more substantial fact issues, appellant “Plaintiffs[’] claims were objectively unreasonable in that was entitled to reasonable discovery to do so.”). Prior to that, Plaintiffs pursued litigation despite multiple third-party as noted, plaintiffs had several concerns that reasonably declarations establishing independent creation of [“The World prompted them to continue discovery. Indeed, the most Is Not Enough”] before any of the Defendants had access to important depositions in the case—those of Arnold, Black, Plaintiffs’ original work.” D. Ct. Op. at 8 (June 17, 2003). Manson and Hillis—took place approximately one month But the declarations contained several inconsistencies and all before MGM filed its successful motion for summary of them were submitted by individuals with a personal and judgment. Fogerty and Crow reasonably believed that these professional stake in the answer to whether David Arnold depositions might bear fruit, a conclusion that the district copied a song that he represented as original. While those court apparently reached as well when it denied MGM’s first inconsistencies proved immaterial, plaintiffs were entitled to motion for summary judgment and request for a stay of Nos. 03-5498/5874 Fogerty, et al. v. MGM 19
Group Holdings Corp., et al. discovery, both of which were filed before plaintiffs took these depositions. D. Ct. Order (Jan. 20, 2002) .
V.
For these reasons, we affirm the district court’s grant of summary judgment and reverse its award of attorneys’ fees.
NOTES
[*] The Honorable John D. Holschuh, United States District Judge for the Southern District of Ohio, sitting by designation. 1 Nos. 03-5498/5874 Fogerty, et al. v. MGM 3 4 Fogerty, et al. v. MGM Nos. 03-5498/5874 Group Holdings Corp., et al. Group Holdings Corp., et al. I. for Geoff Foster and Isabel Griffiths, employees of Air Studios, on a grand piano in the studio’s main hall. Michael Wilson and Barbara Broccoli, the current
