ORDER RE DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT AND REQUESTS FOR ATTORNEYS’ FEES
This mаtter is before the Court on Defendants’ Motions for Summary Judgment and Requests for Attorneys’ Fees. A hearing was held on January 28, 2011. Having duly considered the respective positions of the parties, as presented in their briefs and at oral argument, the Court now renders its decision. For the reasons set forth below, Defendants’ Motions and Requests are GRANTED in part and DENIED in part.
I.
PROCEDURAL HISTORY
Plaintiff filed this action on March 24, 2009 and the operative Second Amended Complaint [Doc. # 38] on September 11, 2009. On January 6, 2010, this Court, the Hon. George H. King, presiding, granted Defendants’ motions to dismiss all claims except Plaintiffs fifth cause of action for copyright infringement [Doc. # 68]. On April 8, 2010, the Court granted Plaintiffs request to dismiss all defendants except for Robert and Sara Weinstein [Doc. #90].
Defendant Robert Weinstein filed a Motion for Summary Judgment and Request for Attorneys’ Fees [Doc. # 126] on October 8, 2010. Plaintiff filed his Opposition [Doc. # 133] on October 29, 2010 and Defendant Robert Weinstein filed his Reply [Doc. # 139] on November 12, 2010.
On November 11, 2010, Defendant Sara Weinstein filed a Motion for Summary Judgment and Request for Attorneys’ Fees [Doc. # 138], Plaintiff filed his Opposition [Doc. # 144] on December 2, 2010. Defendant Sara Weinstein filed her Reply [Doc. # 147] on December 17, 2010.
The Court requested further briefing on the issue of fair use [Doc. # 171]. On January 19, 2011, supplemental briefs were filed by Plaintiff [Doc. # 178], Defendant Robert Weinstein [Doc. # 175], and Defendant Sara Weinstein [Doc. # 176]. In addition, Defendant Sara Weinstein filed a Request for Judicial Notice [Doc. # 177]. Plaintiff filed an Opposition to Defendant Sara Weinstein’s Request for Judicial Notice [Doc. # 179] on January 24, 2011.
II.
FACTUAL BACKGROUND
In setting forth the facts underlying this dispute, the Court draws exclusively from Plaintiffs version of events, resolving all disputed facts in Plaintiffs favor and assuming without deciding that Defendants’ evidentiary objections are to be overruled.
Plaintiff is an attorney. In September 2006, Plaintiff retained the forensic accounting firm White, Zuekerman, Warsavsky, Luna, Wolf & Hunt L.L.P. (“White Zuekerman”) to perform a mathematical calculation on behalf of one of his clients. (2nd Am. Compl. ¶ 25.) In March 2007, after receiving a bill from White Zuckerman for this work, Plaintiff became concerned that the billed hours were excessive
On March 26, 2007, Plaintiff sent an email to the Consumer Attorneys Association of Los Angeles (“CAALA”) listserv, which stated in its entirety as follows: “Has anyone had a problem with White, Zuckerman ... cpas including their economist employee Venita McMorris over billing or trying to churn the file?”
At the time, both Plaintiff and Defendant Robert Weinstein were members of the CAALA listserv. (2nd Am. Compl. ¶¶ 16-17.) Robert Weinstein accessed the CAALA listserv e-mails containing Plaintiffs writing, which he forwarded in an email to his sister, Defendant Sara Weinstein, who was a client of White Zuckerman. Sara Weinstein then forwarded the e-mail containing Plaintiffs writing to White Zuckerman.
Plaintiff asserts that he holds a valid copyright and that Defendants’ acts— copying and distributing his listserv post— сonstituted both copyright infringement and contributory infringement. (2nd Am. Compl. ¶¶ 136, 140; RW Opp’n, Stern Decl. ¶ 17.)
III.
LEGAL STANDARD
Summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); - accord Munoz v. Mabus,
The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,
When a defendant challenges the quantum of the plaintiffs originality or creativity as a matter of law, “these matters should be resolved solely by the judge.” 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 12.10[B][1] (rev. ed.2010) (citing Collezione Europa U.S.A., Inc. v. Hillsdale House, Ltd.,
IV.
DISCUSSION
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A. Plaintiff Cannot Enforce The CA-ALA Listserv Confidentiality Agreement
At first blush, Plaintiffs Second Amended Complaint presents a garden variety infringement claim. Plaintiff muddies the waters somewhat by relying in part on provisions of the CAALA listserv agreement:
[I]t is my position the infringement has occurred, because my writing is copyrightable, and posted to the CAALA listserv, which constitutes a license, which defendant Robert Weinstein was required to sign to be a member of the listserv, that my writing may only be copied and distributed within the parameters of the CAALA listserve [sic] agreement, and as my writing, with my consent. That parameter is that any copying and distribution must be solely within a posting to the CAALA listserv. Any copying and distribution, as occurred herein, outside of the CAALA listserv is a breach of the licensing agreement, and my right to determine who may, and under what circumstances, copy and distribute his writing, thus, a copyright violation.
(RW Opp’n, Stern Deck ¶ 17.)
Plaintiffs copyright claims cannot rely on provisions in the CAALA listserv agreement. As an initial matter, the listserv agreement is not a single agreement. Rather, it is a series of agreements between the CAALA and each individual member of the listserv. Thus, Plaintiff can only enforce provisions of the agreement between the CAALA and Defendant Robert Weinstein if Plaintiff is an intended third-party beneficiary of that agreement. See Doe I v. Wal-Mart Stores, Inc.,
Although the CAALA listserv rules require confidentiality, the purpose of this requirement is concern over CAALA’s potential liability when a member’s client’s confidential information is compromised— not concern over the member’s work product or intellectual property rights. This purpose is apparent from CAALA’s disclaimer of any liability due to breaches of confidentiality: “You agree, as a condition of membership in the CAALA Listserv, to assume all responsibility for the breach of any confidentiality that may occur as a result of your posting information on the Listserv, and you acknowledge that CA-ALA cannot and does not act as a guarantor of such confidentiality.” (RW Opp’n, Ex. 1 at 2.) Moreover, the listserv rules provide for their enforcement only by the CAALA Executive Director, Executive Committee members, and/or Board of Governors. (Id. at 3-4.) Conspicuously absent is any provision allowing for enforcement of the rules by individual listserv members.
Thus, Plaintiff is only an incidentаl beneficiary of the agreement between Defendant Robert Weinstein and the CAALA. As such, he cannot enforce its confidentiality provisions. That Robert Weinstein allegedly violated the listserv agreement is not entirely immaterial; as discussed below, it is one factor to be considered in the fair use analysis. It is not, however, an independent basis for liability.
B. Plaintiff’s Listserv Post Is Not Copyrightable Because It Lacks Originality
1. The Originality Standard
The Copyright Act protects only “original works of authorship.” 17 U.S.C. § 102(a) (emphasis added). The originality requirement derives from the Constitution, which, “by securing for limited Times to Authors ... the exclusive Right to their ... Writings,” U.S. Const, art. I, § 8, cl. 8, “presuppose[s] a degree of originality.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
Originality does not require uniqueness. “ ‘Original’ in reference to a copyrighted work means that the particular work ‘owes its origin’ to the ‘author.’ No large measure of novelty is necessary.” Alfred Bell & Co. v. Catalda Fine Arts,
Nonetheless, to be copyrightable, a work must exhibit' some minimal level of creativity. While “the amount of creative
Plaintiffs certificate of registration raises the presumption that his work is original and his copyright valid. See Dream Games of Ariz., Inc. v. PC Onsite,
2. The Originality Of A Single Sentence
The parties dispute whether Plaintiffs one-sentence listserv post contains the “modicum of creativity” necessary to satisfy the originality requirement.
“It is axiomatic that copyright law denies protection to ‘fragmentary words and phrases’ and to ‘forms of expression dictated solely at functional considerations’ on the grounds that these materials do not exhibit the minimal level of creativity necessary to warrant copyright protection.” CMM Cable Rep, Inc. v. Ocean Coast Props., Inc.,
Ultimately, the distinction between sentence and phrase is immaterial to the originality analysis. The focus must remain on the presence of creativity. While a shorter work, ceteris paribus, is less likely to possess the creative spark necessary to be accorded copyright protection, that will not always be the case. A single sentence may be singular. As the Sixth Circuit explained in the context of computer code,
we do not mean to say that brief computer programs are ineligible for copyright protection. Short programs may reveal high levels of creativity and may present simple, yet unique, solutions to programming quandaries. Just as a mathematician may develop an elegant proof, or an author may express ideas in a spare, simple, but creative manner, see, e.g., e.e. cummings [sic9 ], Selected Poems (Richard S. Kennedy ed., 1994), so a computer programmer may develop a program that is brief and eligible for protection. But unless a creative flair is shown, a very brief program is less likely to be copyrightable because it affords fewer opportunities for original expression.
Lexmark Int'l, Inc. v. Static Control Components, Inc.,
3. Plaintiffs Sentence Lacks Creativity
Thus, the copyrightability of a very short textual work — be it word, phrase, sentence, or stanza — depends on the presence of creativity. The opening sentence of a poem may contain sufficient creativity to warrant copyright protection
Plaintiffs listserv post, in contrast, displays no creativity whatsoever— its content is dictated solely by functional considerations. Plaintiff merely requested factual information: whether anyone on the listserv had a bad experience with a certain forensic accounting firm — and one employee in particular — regarding over-billing and the churning of client files. His single sentence conveys precisely this idea and no more. As Plaintiffs expression of his idea is indistinguishable from the idea itself, it is not entitled to copyright protection. See Dream Games,
In an effort to show that his sentence involved creative effort, Plaintiff points out several alternative formulations that he considered and rejected. (See RW Opp’n, Stern Decl. ¶ 7.) The fact that Plaintiff could have varied his sentence in trivial ways, however, does not mean that his particular choice of words is original.
When the uneopyrightable subject matter is very narrow, so that the topic necessarily requires, if not only one form of expression, at best only a limited number, to permit copyrighting would mean that a party or parties, by copyrighting a mere handful of forms, could exhaust all possibilities of future use of the substance. In such circumstances it does not seem accurate to say that any particular form of expression cоmes from the subject matter. However, it is necessary to say that the subject matter would be appropriated by permitting the copyrighting of its expression. We cannot recognize copyright as a game of chess in which the public can be checkmated.
Morrissey v. Procter & Gamble Co.,
Furthermore, the variations that Plaintiff considered involved not just different expressions but also different underlying ideas. For instance, Plaintiff considered asking about either churning or overbilling but not both. (KW Opp’n, Stern Decl. ¶ 7(a).) Yet, churning is not the same thing as overbilling and asking about one or the other is substantively different than asking about both. In any event, with two exceptions, none of the alternative formulations that Plaintiff considered possesses originality because in еach case the expression is indistinguishable from the idea.
Plaintiffs final two examples (id. ¶ 7(c)), although they too express different ideas than the writing at issue, do possess some minimal creative effort insofar as Plaintiff selected the particular evidence to cite when asking whether his fellow listserv members thought it constituted churning or overbilling. Had Plaintiff in fact posted either of these paragraphs to the listserv, he would now have a much stronger argument for originality. The fact that Plaintiff could have expressed his idea in such a way as to warrant copyright protection, however, has no bearing on whether his actual expression is copyrightable. A court could deny protection, for instance, to the headline “Pedophile Kidnaps Teenage Girl, Goes To Jail” without calling into doubt Vladimir Nabokov’s copyright in Lolita.
The instant case is similar to CMM Cable Rep, which involved a brochure for a radio station’s on-air promotion. The plaintiffs brochure contained several sentences and/or phrases, including the following:
3. CALL IN, CLOCK IN & WIN! When you hear your name, call: (800) 749-9290 within 10 minutes and “cloсk in!” Make $50 every hour until the next person whose name is announced calls in to replace you on the payroll. If you’re still “on the clock” at quitting time, you’ll start over at 7 a.m. the next workday making $50 per hour until you’re replaced.
Plaintiffs reliance on Applied Innovations is misplaced. As the foregoing discussion indicates, this Court has no disagreement with the Eighth Circuit’s holding that short, declaratory sentences are not per se uncopyrightable.
In sum, the Court finds that Plaintiffs one-sentence listserv post is devoid of creative effort and therefore uncopyrightable. Courts seldom resolve copyright infringement claims solely on that basis, however, in part because courts resist making aesthetic judgments for which they are ill-equipped. See Bleistein,
C. Defendants’ Alleged Copying Of Plaintiff’s Listserv Post Was Fair Use
A copyright holder’s exclusive right to reproduce the copyrighted work is subject to a number of limitations, in particular fair use. See 17 U.S.C. §§ 106, 107; Sony Corp. of Am. v. Universal City Studios, Inc.,
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Id.
The fair use analysis is flexible, and a court may consider additional factors on a case-by-case basis. Leadsinger, Inc. v. BMG Music Publ’g,
The first fair use factor requires consideration of the purpose and character of the allegedly infringing use. This inquiry’s “central purpose” is to determine whether and to what extent the challenged work is “transformative.” Perfect 10, Inc. v. Amazon.com, Inc.,
a. Transformative Use
Defendants’ use of Plaintiffs sentence is highly transformative. Plaintiffs listserv post sought specific information about a forensic accounting firm’s questionable business tactics. Defendants did not seek any information at all; their purpose was to alert the company about Plaintiffs post. By forwarding the post in e-mails, they conveyed the fact of the post rather than its underlying message. Defendants’ emails thus had a substantially different purpose than the post itself, a fact which weighs heavily in favor of fair use. See Perfect 10,
b. Non-Commercial Use
Equally important is the non-commercial nature of Defendants’ use. See Worldwide Church of God v. Phila. Church of God, Inc.,
Regardless, even if true, the allegation does not undermine a finding of fair use. As discussed above, it was not Plaintiffs particular form of expression that would have enhanced Defendants’ business relationships; rather, it was the fact of his expression. To the extent Defendants benefitted at all, they would have benefitted equally by simply telling White Zuckerman that Plaintiff was publicly requesting information from other White Zuckerman clients about negative experiences with the firm. In this respect, Defendants’ alleged transmission of data to White Zuckerman resembles activities such as “criticism, comment, [and] news reporting,” 17 U.S.C. § 107, which are quintessential^ fair uses. To be considered “commercial” use, the use must “exploit ] the copyright for commercial gain — as opposed to incidental use as part of a commercial enterprise.” Elvis Presley Enters., Inc. v. Passport Video,
c. Violation Of The CAALA Listserv Agreement
“Because fair use presupposes good faith and fair dealing, courts may weigh the propriety of the defendant’s conduct in the equitable balance of a fair use determination.” Fisher,
Concerns about confidentiality and creative control, however, lie primarily if not exclusively in the context of unpublished works. See id. (“The fact that a work is unpublished is a critical element of its ‘nature.... ’ [T]he scope of fair use is narrower with respect to unpublished works.” (citation omitted)). Plaintiff asserts publication at the time his e-mail was posted on the listserv. (See RW Opp’n, Ex. 2 (listing March 26, 2007 as the date of first publication).) Any confidentiality concerns based on post-publication copying from the listserv are greatly attenuated. At bottom, Plaintiffs confidentiality concern is about the transmission of his unprotectable idea rather than the disclosure of the manner in which he expressed it. Such concerns are outside the purview of copyright law.
Defendants’ highly transformative, noncommercial use of Plaintiffs work far outweighs the negligible harm to Plaintiff from violation of the CAALA’s confidentiality provision. Accordingly, the first fair use factor—the purpose and character of the use—substantially favors a fairness finding.
2. Nature Of The Copyrighted Work
The next factor focuses on the work’s nature. “The more informational or functional the plaintiffs work, the broader should be the scope of the fair use defense.” Leadsinger,
3. Amount And Substantiality Of The Portion Used
Generally, “wholesale copying of copyrighted material precludes application of the fair use doctrine.” Marcus v. Rowley,
The facts of this case reveal it to be one of the limited situations where verbatim copying of an entire work is fair. There are two independent reasons why this is so. First, the “work” at issue is a 23-word sentence. It would be nearly impossible to excerpt this sentence for legitimate comment or criticism without reproducing it in toto. See Belmore v. City Pages, Inc.,
The copying of Plaintiffs entire sentence was also reasonable in light of the purpose for which it was reproduced — to alert White Zuckerman about Plaintiffs potentially libelous statement. See Campbell,
Reproduction of copyrighted material for use in litigation or potential litigation is generally fair use, even if the material is copied in whole. For instance, in Jartech, Inc. v. Clancy,
In Hustler, a case highly relevant to the instant litigation, the plaintiff magazine published a parody featuring Reverend Jerry Falwell, a fundamentalist minister, “describing his ‘first time’ as being incest with his mother in an outhouse, and saying that he always gets ‘sloshed’ before giving his sermons.”
The Ninth Circuit affirmed a fair use finding. While acknowledging that the defendants copied the plaintiffs entire parody, the Ninth Circuit found their use reasonable: “[A]n individual in rebutting a copyrighted work containing derogatory information about himself may copy such parts of the work as are necessary to permit understandablе comment. Falwell did not use more than was reasonably necessary to make an understandable comment when he copied the entire parody from the magazine.” Id. at 1153. It made no difference, the court explained, that the parody did not defame Falwell’s co-defendants, because Falwell “used them as a medium to transmit his messages.” Id. at 1153 n. 9.
Similarly here, Defendants acted on White Zuckerman’s behalf when they allegedly copied and forwarded Plaintiffs negative and potentially defamatory statement about White Zuckerman. (See 2nd Am. Compl. ¶83 (“By so accepting the benefits of Robert Weinstein and Sara Weinstein’s wrongful conduct, and by using [P]laintiffs confidential email to threaten to sue him for slander, [White Zuckerman] thereby actually, apparently and impliedly gave Robert Weinstein and Sara Weinstein authority, to commit such wrongful conduct, on behalf of [White Zuckerman] as if they were originally authorized, by them, ab initio.”).)
Although wholesale copying normally weighs against fair use, the extenuating circumstаnces here — the extreme brevity of the work at issue and the reasonableness of the purpose for which it was copied — render this third factor neutral in the overall fair use analysis.
4. Effect Upon The Value Of The Copyrighted Work
Evaluating the fourth and final fair use factor — the effect of the infringing activity upon the Plaintiffs potential market for or value of the copyrighted work— is straightforward: There is no effect. Plaintiffs listserv post has no market value and Defendants’ alleged copying and distribution in no way diminishes the intrinsic value of the post to Plaintiff or other listserv users. The only actual damages that Plaintiff alleges are the copyright registration fee, his time spent on the instant litigation, and pain, suffering, and emotional distress. (See RW Opp’n at 20-24.) Because Defendants’ alleged infringe-
5. Balancing The Factors
Each of the four factors either support Defendants’ fair use defense or are neutral. This is unsurprising. In an age of blogs, listservs, and other online fora, a person’s short comment in cyberspace is frequently quoted in its entirety as others reply or forward it elsewhere. It would be strange, dangerous even, if every such quotation subjected the copier to liability and a federal lawsuit. Such heavy-handed tactics are akin to using a cannon to kill a mosquito; they carry the same attendant risk of collateral damage by chilling free speech. A free and vibrant democracy depends upon the unfettered exchange of ideas. See Red Lion Broad. Co. v. F.C.C.,
Even if Plaintiff had a thin copyright in his listserv post, Defendants’ alleged use of it was fair. Consequently, Defendants are entitled to summary judgment.
D. Attorneys ’ Fees
Both Defendants request attorneys’ fees. The Copyright Act of 1976 vests district courts with the discretion to award “a reasonable attorneys’ fee to the prevailing party.” Love v. Associated Newspapers, Ltd.,
1. Defendants Are Entitled To Reasonable Attorneys’ Fees And Costs a. Degree Of Success Obtained
Defendants successfully obtained judgment against Plaintiff on his remaining cause of action for copyright infringement. Their success was total. Thus, this factor favors a fee award.
b. Frivolousness Or Objective Unreasonableness Of Plaintiffs Factual And Legal Arguments
Plaintiff asserts that his copyright claim was not frivolous because the Copyright Office issued a certificate of registration in his writing. Plaintiffs copyright registration is relevant оnly to the validity of his copyright. As discussed above, Plaintiff is incorrect about the validity of his copyright because his listserv post lacks originality. Nonetheless, Plaintiffs originality argument was not objectively unreasonable. The problem with Plaintiffs copyright claim lies in Defendants’ obvious fair-use defense. A reasonable person, particularly one who happens to be an attorney, would not have pursued such folderol. Plaintiffs decision to proceed with this patently meritless cause of action supports a fee award.
i. Evidence Of Damages Or Other Potential Remedies
There is evidence that Plaintiff brought this suit — including the copyright claim— in bad faith. First, there is a dearth of evidence that Plaintiff suffered actual damages.
As for the time Plaintiff spent on the instant litigation, it would be compensable only if Plaintiff had the prospect of recovering attorneys’ fees, which, as a pro se litigant, he did not. See Elwood v. Drescher,
That leaves only Plaintiffs outlandish suggestion that his $750 copyright registration fee constitutes actual damages. Copyright registration is not mandatory. Congress, wishing to encourage the development of a robust federal register of copyrights, provides certain incentives to copyright registrants. For instance, registration is a prerequisite to a copyright infringement suit involving a U.S. work. See Cosmetic Ideas, Inc. v. IAC/Interactivecorp.,
The absurdity of Plaintiffs position becomes apparent when one considers the more typical infringement case where an author has a legitimatе copyright in a work with some commercial value. In such cases, infringement is often committed on different occasions by more than one party. Allowing recovery of registration fees would arbitrarily and unfairly punish the party that the author chose to
In addition to actual damages, Plaintiff maintains that he is entitled to injunctive relief. Overlooking the fiivolousness of this lawsuit, discussed supra, the potential for injunctive relief might have provided justification for bringing Plaintiffs copyright claim were there a probability of continued “infringement.” But Plaintiff provides no evidence that Defendants are likely to commit further acts of alleged infringement. Indeed, it is highly unlikely that Defendants will have reason to forward Plаintiffs listserv post to White Zuckerman or anyone else in the future.
Because Plaintiff had no compensable damages and no reason to seek injunctive relief, the Court concludes that he brought his copyright claim in bad faith. This conclusion is bolstered by Plaintiffs delay in providing Defendants with a copy of the listserv post.
ii. Plaintiffs Delay In Turning Over His Listserv Post
“[Mjany actions are extended unnecessarily by lawyers who exploit or abuse judicial procedures, especially the liberal rules for pretrial discovery.” Roadway Express, Inc. v. Piper,
Plaintiff asserts that he would have turned over his listserv post sooner if Defendants had agreed to provide a protective order. (RW Opp’n, Stern Decl. ¶ 24.) This assertion strains credulity. Rule 26(c)(1) allows a court to enter a protective order “to protect a party or person from annоyance, embarrassment, oppression, or undue burden or expense.” Plaintiff does not show how Defendants’ unfettered access to his listserv post falls into any of these categories. Nor can Plaintiffs listserv post be described as “a trade secret or other confidential research, development, or commercial information.” Fed. R.Civ.P. 26(c)(1)(G).
Throughout this litigation, Plaintiff has inaptly described the listserv post as his “work product.” (See, e.g., RW Opp’n, Stern Decl. ¶ 24.) “The work product doctrine is a ‘qualified privilege’ that protects ‘certain materials prepared by an attorney acting for his client in anticipation of litigation.’ ” Hernandez v. Tanninen,
Even if, for the sake of argument, the listserv post did constitute Plaintiffs work product, Plaintiff unquestionably waived its protection. Plaintiff shared his question with approximately 2,300 other attorneys on the CAALA listserv and registered it with the Copyright Office. Fur
Plaintiffs obstructionist tactics, such as filing two unfounded applications to seal [Doc. ##41, 84-85], are 'not surprising given his apparent litigation goal of obtaining discovery. Nonetheless, they wasted Defendants’ time and money defending this action as well as scarce judicial resources. They are yet another example of Plaintiffs bad faith.
d. Compensation And Deterrence
Awarding attorneys’ fees to a prevailing defendant in a copyright infringement suit may compensate the defendant, but it may also deter the very creativity that the Copyright Act seeks to promote by providing copyright holders with disincentives to enforce their rights and thereby undermining the value of copyright protection. These concerns are not present here, however, because Plaintiffs one-sentence listserv post was not a creative work and has no commercial value.
Discouraging frivolous lawsuits would not erode the value of copyright protection. Furthermore, lawsuits of this nature have a chilling effect on creativity insofar as they discourage the fair use of existing works in the creation of new ones. See Feist,
e. Balancing The Factors
Although all four factors favor a fee award, the frivolousness of Plaintiffs copyright claim and his bad faith in bringing it weigh most heavily. Defendants are entitled to attorneys’ fees under the Copyright Act.
2. Defendants Fail To Submit Evidence Supporting An Award
The Court cannot grant Defendants’ Requests for Attorneys’ Fees, however, because Defendants omit the necessary evidentiary support. Defendant Robert Weinstein requests an award of $19,973 in attorneys’ fees incurred defending this action. (RW Mot. at 10.) Defendant Sara Weinstein requests an award of $51,180. (SW Mot. at 14.) Defendants support their requests with brief statements from counsel setting forth their billing rates and billable hours. (RW Mot., Farrell Decl. ¶ 4; SW Mot., Belilove Decl. ¶ 7.) This showing is inadequate.
The Copyright Act only provides for attorneys’ fees attributable to defending against copyright and related claims. See The Traditional Cat Ass’n, Inc. v. Gilbreath,
In Kerr v. Screen Extras Guild, Inc.,
The Ninth Circuit “has since relaxed the standard, saying that application of at least some of, or the most relevant, factors may be sufficient for review on appeal.” Jordan v. Multnomah County,
Defendants do not explain why the non-copyright claims are sufficiently “related” as to qualify for fees under the Copyright Act. In addition, Defendants fail to submit the detailed billing records that would allow the Court to determine whether the hours expended on the applicable claims were reasonable. Finally, Defendants do not addrеss any of the Kerr factors. In any amended motion, Defendants should include this information and should avoid overreaching.
Y.
CONCLUSION
In light of the foregoing:
1. Defendants’ Motions for Summary Judgment are GRANTED;
2. Defendants’ Requests for Attorneys’ Fees are DENIED without prejudice; and
3. Defendants shall lodge a proposed judgment within 10 days from the date of this Order.
IT IS SO ORDERED.
. The Court agrees with Plaintiff that the Request for Judicial Notice is immaterial to the instant litigation. The Court has not considered it for any purpose.
. The Court reproduces the whole o£ Plaintiff’s e-mail so that the ensuing discussion of originality and fair use is not hopelessly abstract. The Court’s "unauthorized reproduction” of Plaintiffs copyrighted work is, as Judge Posner has succinctly put it, "a good example of the fair-use doctrine in action.” Ty, Inc. v. Publ’ns Int’l Ltd., 292 F.3d 512, 519 (7th Cir.2002).
. Citations to the record prefaced with "RW” refer to documents filed in support of or in opposition to Defendant Robert Weinstein’s Motion for Summary Judgment. Similarly, citations prefaced with "SW” refer to documents associated with Defendant Sara Weinstein's Motion.
.Plaintiff appears open to the possibility that Defendants transmitted his listserv post to White Zuckerman in some other manner. (See, e.g., 2nd Am. Compl. ¶ 41.) Because the Court ultimately finds that any copying and distribution of Plaintiff's writing was fair use, the exact method of its transmission is immaterial. Defendant Robert Weinstein does not concede and Defendant Sara Weinstein disputes that any transmission occurred.
. “He will win who knows when to fight and when not to fight.” Sun Tzu, The Art of War 32-33 (Lionel Giles trans., Ulysses Press 2007).
. The Copyright Act provides that "[i]n any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright.” 17 U.S.C. § 410(c). Plaintiff registered his work within this time period.
. Plaintiff begins his argument rhetorically, querying whether the following sentence is copyrightable: "To be, or not to be, that is the question?” (RW Opp'n at 1 (quoting William Shakespeare, Hamlet act 3, sc. 1).) Perhaps, a more appropriate play from which to draw quotations would be Much Ado About Nothing.
. That the sentence at issue is a question rather than a statement does not alter the analysis. See, e.g., Rubin v. Boston Magazine Co.,
. Notwithstanding his unconventional use of minuscules and majuscules, E.E. Cummings preferred that his name appear traditionally, i.e., with the initial letters capitalized. See Norman Friedman, Not “e.e. cummings” Revisited, 5 Spring: J. E.E. Cummings Soc’y 41 (1996), http://www.gvsu.edu/english/ cummings/caps2.html.
. Heim concerned the extent of copying necessary to establish infringement rather than copyrightability. See 1 Nimmer, supra, § 2.01 [B] n. 41. Nonetheless, an infringement finding presupposes originality.
. Defendants assert a fair use defense in their answers. (RW Answer to 2nd Am. Compl. ¶ 68; SW Answer to 2nd Am. Compl. 1152.)
. “Plaintiff beliefs [sic], when [White Zuckerman's employee] used the word slander, considering the context of the comment, she really meant liable [sic]. Confusing liable [sic] with slander is a mistake people commonly make.” (2nd Am. Compl. ¶ 56.) Confusing "libel” with “liable” is also a commonly-made mistake.
. Plaintiff is barred from seeking statutory damages because he failed to register his work prior to the alleged infringement or within three months of publication. 17 U.S.C. § 412.