CIVIL ACTION NO. SA-07-CA-76-FB.
December 22, 2010
ORDER REGARDING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court is the Report and Recommendation (docket no. 185) of the United States Magistrate Judge, plaintiff's written objections (docket no. 187) thereto, defendants' response (docket no. 188) to plaintiff's objections and plaintiff's reply (docket no. 189) to defendants' response to plaintiff's objections to the Report and Recommendation.
Where no party has objected to a Magistrate Judge's Report and Recommendation, the Court need not conduct a de novo review of the Report and Recommendation. See 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings and recommendations to which objection is made."). In such cases, the Court need only review the Report and Recommendation and determine whether it is clearly erroneous or contrary to law.United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918 (1989).
On the other hand, any Report and Recommendation to which objection is made requires de novo review by the Court. Such a review means that the Court will examine the entire record, and will make an independent assessment of the law. The Court need not, however, conduct a de novo review when the objections are frivolous, conclusive, or general in nature. Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
The Court has thoroughly analyzed the parties' submissions in light of the entire record. As required by Title 28 U.S.C. § 636(b)(1)(c), the Court has conducted an independent review of the entire record in this cause and has conducted a de novo review with respect to those matters raised by the objections. After due consideration, the Court concludes plaintiff's objections have merit to the extent plaintiff argues a finding of willful copyright infringement is adequately supported by the record.
Since 2003, defendant White has operated the Diamond A Ranch providing guided hunts of various exotic animals, along with leadership seminars. Plaintiff was employed to perform general ranch duties from 2005, until August 31, 2006.
This dispute involves defendants' publication of seven photographs which plaintiff took of the property and its wildlife while still employed at the ranch. Summary judgment was entered in favor of plaintiff on his allegation that defendants willfully violated his copyright by continuing to publish his photographs in their "Leadership at the Diamond A" brochure after he gave notice of his intent to terminate an oral license to use the photographs. Summary judgment was also entered in favor of defendants on plaintiff's claim that defendants violated his copyright by publishing his photographs on defendants' website.
During the course of this federal litigation begun in January of 2007, defendants filed suit in state court alleging plaintiff published defamatory statements about them in a website he created called "diamondalcoholicranch.com." Defendants also alleged plaintiff had sent libelous email correspondence to one of their corporate sponsors. Finally, defendants alleged that plaintiff's acts constituted tortious interference with their business relationships. Plaintiff improperly removed the case twice to federal court. White v. Cullum, Civil Action No. SA-07-CA-410-WWJ; White v. Cullum, Civil Action No. SA-08-CA-811-XR. In a second order of remand following the second removal, plaintiff was ordered to pay defendants' attorneys fees and costs in the amount of $4,375. The case proceeded to trial in state court and the jury found that plaintiff defamed defendant White and rendered a verdict in her favor in the amount of $200,000.
On March 12, 2009, this Court held a hearing on the parties' motions for summary judgment. At the hearing, defendant White admitted on the record that defendants were continuing to use the brochures with plaintiff's photographs. Ms. White subsequently filed an affidavit wherein she attested she "stopped distributing the Leadership at the Diamond A brochures containing Dell Cullum's photographs on March 12, 2009 and I destroyed all the remaining brochures." (Docket no. 178, Exhibit 7, ¶¶ 12-13).
Following entry of the rulings on the parties' motions for summary judgment in this case, the matter was closed for administrative purposes and defendants were Ordered defendants to file an advisory which identified how many Leadership at the Diamond A brochures had been distributed and how many would be distributed in the future. This Court also directed plaintiff to file a brief in which he clarified the damages for which he sought recovery on his claim about the use of his photographs in the brochure. Although the Order on summary judgment clearly stated the only unresolved issue in this case is the matter of damages, plaintiff continued to file documents seeking to further litigate his case, including a motion for temporary injunction and a motion for sanctions against defendants' attorney. (Docket nos. 183 184). The case was referred to the Magistrate Judge for the issuance of a Report and Recommendation on the issue of damages.
Title 17 section 504(c)(1) and (2) of the United States Code provides a wide range for damage awards. "Under this section, while the district court is bound by the rule that it must award damages according to the number of `separate and independent' works infringed, the court enjoys wide discretion in setting the amount of damages for each work infringed and hence the final amount of damages." Broadcast Music, Inc. v. Xanthas, Inc., 855 F.2d 233, 237 (5th Cir. 1988). Section 504(c) authorizes the Court to award an amount from $750 to $30,000 for each work infringed "as the court considers just," and to increase the per-work-infringed award to $150,000, "in its discretion," for willful infringements.
The Magistrate Judge issued a Report and Recommendation (docket no. 185) recommending that damages be awarded in favor of plaintiff based on one work infringed in the minimum amount of $750. The Magistrate Judge further recommends that plaintiff's request for attorney's fees be denied, but that defendants be enjoined from using any photo taken by plaintiff for any purpose. The Magistrate Judge also observed that plaintiff has never prosecuted his claim under the Lanham Act and concludes plaintiff waived the claim by never prosecuting the claim. The Report therefore recommends entry of final judgment without further proceedings and notes the pending motions can be denied as moot if these recommendations are accepted. Plaintiff filed objections to the Report and Recommendation, defendants filed a reply, and plaintiff filed a reply to defendants' response to plaintiff's objections.
With regard to the number of statutory damage awards, this Court agrees with the Magistrate Judge the publication of the seven photos in the brochure constitutes a single infringed work. Accordingly, one award of statutory damages is appropriate.
This Court also agrees with the Magistrate Judge that the balancing of relevant factors does not support more than the $750 minimum statutory damage award. As discussed in the report: (1) no evidence indicates defendants saved expenses as a result of using plaintiff's photos in the brochure; (2) no evidence indicates defendants reaped a profit from using the photos; (3) to the extent plaintiff's photos held economic value, no evidence supports plaintiff's allegation that defendants' actions diminished the commercial value of his work; (4) up until the time plaintiff filed suit, defendant White defendant did not have the requisite state of mind to willfully infringe on plaintiff's copyright; (5) the compliance with contractual obligations factor does not apply because no contract existed between the parties; (6) there is no evidence of prior infringing conduct; (7) there is no need to sanction defendants; and (8) defendants will not avoid punishment with a minimum damage award. With regard to the last two factors, this case has been pending for over three years and defendants have undoubtedly expended tens of thousands of dollars to defend themselves (if plaintiff's attorney's fees are indicative of defense costs, then hundreds of thousands of dollars). In addition to the costs associated with this federal lawsuit, defendants found it necessary to file a successful lawsuit in state court to defend their reputations and business efforts. Defendants were also successful in defending plaintiff's allegations that defendants violated his copyright by publishing his photographs on defendants' website. It is improbable defendants will ever again infringe upon plaintiff's photographs.
Plaintiff seeks enhanced damages based on willfulness. He relies on the summary judgment Order stating: "plaintiff has demonstrated he is entitled to summary judgment on his claim that defendants willfully violated his copyright by continuing to publish the brochure after the date the license terminated." (Docket no. 147, p. 8) (emphasis added). In the Order on summary judgment, this Court further found that any license which plaintiff had given to defendants to use his photographs terminated on January 24, 2007, the date plaintiff filed suit in federal court asserting copyright ownership of the photos.
The Magistrate Judge acknowledged that Ms. White was undoubtedly aware that plaintiff had asserted a copyright, but found based on affidavit and deposition testimony that Ms. White held a reasonable and good faith belief she was not infringing on plaintiff's copyrighted work. Report and Recommendation, docket no. 186, p. 10. The Magistrate Judge therefore recommends denying plaintiff's request for enhanced damages based on willful infringement.
As discussed in the Report, Ms. White's affidavit contains evidence relevant to the issue of willfulness. On November 30, 2009, Ms. White attested she did not believe she had infringed on plaintiff's copyright. She stated:
I did continue to use my Leader's Edge brochure with Dell Cullum's photographs until March 12, 2009. To me, removing the photographs sooner would have been an admission that I stole the photographs as Dell Cullum had accused me, which simply was not true. Dell Cullum had given me the photographs. I had allowed Dell Cullum to freely come into my home. . . . I believed that at [the March 12, 2009] hearing Judge Biery did believe me that I had not stolen Dell Cullum's photographs and that Dell Cullum had given me the photographs. I stopped distributing the Leadership at the Diamond A brochures containing Dell Cullum's photographs on March 12, 2009 and I destroyed all the remaining brochures. . . .Report and Recommendation, docket no. 185, p. 9 (quoting docket no. 178, Exhibit 7, ¶¶ 12-13). The Magistrate Judge found this evidence important in considering "whether to increase a statutory damage award because it does not indicate [defendant] White knew her use of the photographs infringed plaintiff's copyright." Id. The Magistrate Judge explained:
Prior to March 12, 2009, the District Court had not ruled on the parties' motions and determined whether the photographs were protected by a copyright. Cullum had not been established as a copyright holder. White was undoubtedly aware that Cullum asserted a copyright, but the affidavit indicates she did not believe she had infringed on copyrighted work.Id. at 9-10.
In addition to the affidavit, Ms. White's deposition is also relevant to the issue of willfulness. On February 23, 2009, defendant White attested:
[W]hen Dell handed me that disk [of photos], there was never ever anything mentioned about copyrights, releases, no nothing. When he asked me for permission to take pictures on the ranch, I said, of course, and once in awhile I may ask you to even take one for me. There was nothing mentioned about copyrights or permits. . . . I can't explain anymore than I already have. He never said anything.Id. at 10 (quoting docket no. 78, Exhibit 9, p. 42).
As pointed out by the Magistrate Judge, plaintiff never controverted this deposition testimony, other than generally asserting that defendants stole his photographs. Report and Recommendation, docket no. 185, p. 10. "Uncontroverted," the Magistrate Judge determined, "this testimony reflects a reasonable and good faith belief White was not infringing on copyrighted material by using photos of her ranch in her brochure promoting the `Leadership at Diamond A Ranch' program." Id. As explained in the Report:
White has steadfastly maintained that Cullum gave her the photos without restriction on use. Cullum asked White for permission to take photos of White's ranch. Cullum has not offered proof that he told White the photos were protected by a copyright or that he intended to profit from photos of the ranch. Cullum has not testified that he told White that she could not use the photos. Cullum did not assert a copyright interest in the photos until after White passed him over for promotion to ranch foreman and Cullum left the ranch. . . .Id. at 10. "Under the circumstances," the Magistrate Judge determined, "White could reasonably believe she was not infringing on copyrighted photos." Id. at 10-11.
In this Circuit, a defendant's infringement is willful if he "knows his actions constitute an infringement." Broadcast Music, Inc. v. Xanthas, Inc., 855 F.2d 233, 236 (5th Cir. 1988). Actual knowledge is not required; constructive knowledge of infringement satisfies the willful standard. Swallow Turn Music v. Wilson, 831 F. Supp. 575, 580 (E.D. Tex. 1993); see also Fitzgerald Publishing Co. v. Baylor Publishing Co., 807 F.2d 1110, 1113 (2d Cir. 1986). "Evidence that notice was given to a copyright infringer before the infringement occurred is persuasive evidence of willfulness." Wilson, 831 F. Supp. at 579 (citing Chi-Boy Music v. Charlie Club, Inc., 930 F.2d 1224, 1227 (7th Cir. 1991)).
Plaintiffs in Wilson alleged a tavern owner willfully infringed upon their copyrights by playing copyrighted music at his tavern. 831 F. Supp. at 579. Over a two year span, the tavern owner received fifteen letters "informing him that his conduct violated the copyright laws" and of the "possible penalties for violations of the law." Id. at 579-80. The Court found these letters were sufficient to put the tavern owner on notice of his infringement; therefore, his continued use of the music constituted "willful infringement." Id. at 580.
Defendants here, like the tavern owner in Wilson, received notice of their infringement for over two years while continuing to infringe on plaintiff's copyright. Plaintiff's complaint filed on January 24, 2007, informed defendants their conduct violated the copyright laws and set forth possible penalties for violations of these laws. Accordingly, this Court finds that defendants' decision to continue to use the photographs in their Leaders Edge brochure after suit was filed in January of 2007, until March 12, 2009, constitutes willful infringement.
The Magistrate Judge found it important that plaintiff had not been established as a copyright holder prior to the time Ms. White stopped using his photographs on March 12, 2009. Both federal appellate and district courts have found the filing of a complaint is sufficient to put the defendants on notice that the plaintiff had copyrighted his work. See McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1357 (Fed. Cir. 2007) (finding that complaint alleging infringement is sufficient to put alleged infringer on notice of copyright infringement); California Institute of Computer Assisted Surgery, Inc. v. Med-Surgical Servs., Inc., No. 10-02042 CW, 2010 WL 3063132 (N.D. Cal. Aug. 3, 2010) (finding that, although plaintiff's complaint was lacking in specificity, it was sufficient to provide defendant with notice of plaintiff's patents and of the risk of liability for infringement). Under this analysis, defendants were on actual and/or constructive notice they were violating plaintiff's copyright even though the Court had yet to determine that plaintiff was a copyright owner.
In any event, presuming arguendo defendants can make a prima facie case they did not receive proper notice, Ms. White cannot satisfy the subjective analysis on which the Magistrate Judge decided this case. Once suit was filed, Ms. White's impressions that plaintiff had given her the photographs for use without restriction — and without copyright protection — were no longer valid. Ms. White could not in good faith have believed that plaintiff intended her to use the photographs without restriction and without protection because plaintiff never wavered from his adamant insistence that he was their sole licensor. See Childress v. Taylor, 798 F. Supp. 981, 995 (S.D.N.Y. 1992) ("Taylor cannot satisfy even the subjective prong of the issue on which the case was decided. She could not in good faith have believed that Childress intended the play to be regarded as one of joint authorship. Childress never wavered from her adamant insistence that she was the sole author.").
Finally, even if Ms. White could satisfy the subjective prong of the issue on which the Magistrate Judge decided this case, it is her objective intent, as opposed to her subjective intent, which controls whether damages should be enhanced. Although not directly on point because this Court is considering whether to enhance, rather than reduce, plaintiff's damages based on willful conduct, the "innocent infringer" defense comes into play. As stated by the United States Court of Appeals for the Second Circuit, "[j]ust as the lack of actual or constructive knowledge will establish an innocent intent, so a defendant's actual or constructive knowledge proves willfulness." See Fitzgerald Publishing Co., 807 F.2d at 115.
The innocent infringer defense gives the District Court discretion to reduce the minimum statutory damages from $750 to $200 per infringed work if it finds the infringer "was not aware and had no reason to believe that his or her acts constituted an infringement of copyright." 17 U.S.C. § 504(c)(2). A defendant is an innocent infringer only if, regardless of state of mind, his or her conduct is objectively reasonable. See Dial One, Inc. v. BellSouth Telecommunications, Inc., 269 F.3d 523, 527 (5th Cir. 2001) (rejecting defendants' innocent infringer defense finding not objectively reasonable conduct of failing to remove incorrect listing in Lanham Act case alleging infringement of trademark). "It would make no sense," the United States Court of Appeals for the Fifth Circuit held, to allow a copyright defendant's "subjective intent to erode" the innocent infringer defense.Maverick Recording Co., v. Harper, 598 F.3d 193, 197-98 (5th Cir.), cert. denied, 2010 WL 2801274 (Nov. 29, 2010).
Ms. White's statements she "freely" allowed plaintiff into her home, and said "of course" when he asked for permission to take photographs, and the fact Ms. White told plaintiff she "may even ask him to take" a photograph for her, may reveal a personal motivation for her actions (given that she published seven of plaintiff's photographs in her brochure), but they do not go to the issue of whether Ms. White held an objectively reasonable belief she was not infringing on plaintiff's copyright when she continued to distribute her brochure after she knew plaintiff was claiming copyright protection.
Ms. White also stated that she continued to "use [her] Leader's Edge brochure with Dell Cullum's photographs until March 12, 2009," because "to [her], removing the photographs sooner would have been an admission that [she] stole the photographs as Dell Cullum had accused [her]." This solely reflects Ms. White's personal feelings and intent. In this regard, her statement that she "believed that at [the March 12, 2009] hearing that Judge Biery did believe me that I had not stolen Dell Cullum's photographs and that Dell Cullum had given me the photographs" also expresses only Ms. White's personal assessment of what others may or may not have thought.
In sum, the most which can be said for Ms. White is that she had a subjective, good faith belief that plaintiff had given her the photos to use without restriction and without copyright protection. As discussed, Ms. White could not satisfy this subjective element once plaintiff filed suit. See Dial One. Inc. v. BellSouth Telecommunications, Inc., 798 F. Supp. 981, 995 (S.D.N.Y. 1992) ("Taylor cannot satisfy even the subjective prong of the issue on which the case was decided. [Once suit was filed] [s]he could not in good faith have believed that Childress intended the play to be regarded as one of joint authorship. Childress never wavered from her adamant insistence that she was the sole author).
The second prong of the analysis requires the Court to determine whether Ms. White's decision to continue to use the photographs was objectively reasonable. Courts have found a defendant's conduct to be objectively reasonable if, after notification of the alleged infringement, the defendant made a good faith effort to address the problem. See Creative Internet Advertising Corp. v. Yahoo! Inc., 689 F.Supp.2d 858, 852 (E.D. Tex. 2010) (indicating an increase for willfulness is generally inappropriate when infringer makes good faith and substantial challenge to correct existence of infringement); Microsoft Corp. v. Software Wholesale Club, Inc., 129 F.Supp.2d 995, 1009 (S.D. Tex. 2000) (considering whether defendants made good faith effort to address infringement allegations in determining whether defendant's conduct was objectively reasonable).
This prong of the analysis would require the Court to find it was objectively reasonable for Ms. White to conclude that she could distribute her brochure until she was convinced that the Court and others believed her when she said she had not stolen plaintiff's photographs. This is not a sound reason for Ms. White to believe she had the right to continue distributing the brochures under the objectively reasonable standard for determining enhanced damages.
Domestic Fabrics Corp. v. Sears, Roebuck Co., 326 F.Supp.2d 694, 700-701 (E.D.N.C. 2004), is instructive. A purported owner of a patent for knitted fabric sued a retail seller for infringement in August of 2000. Id. at 700. Despite actual notice the lawsuit had been filed, the retailer continued to sell the allegedly infringing garments, relying on an analysis performed by an in-house fabric technician. Id. The retailer's response to the evidence of its continuing activities was that it acted in good faith by stopping the ordering and selling of the garments at issue by the time the Court entered its order of clam construction in May of 2002, almost two years after it received notice that plaintiff had filed suit. Id. at 701. The Court determined that the retailer acted in bad faith by: (1) not seeking and/or relying on the advice of competent counsel based on an analysis of the two fabrics and (2) continuing to sell the infringing garment for almost two years after plaintiff filed suit claiming an infringement. Id. at 700-02.
Looking at the egregiousness of Ms. White's conduct based on the totality of the circumstances, Ms. White did not act in an objectively reasonable manner. She deliberately continued to copy plaintiff's photographs after she knew of plaintiff's alleged patent protection, but did not investigate the scope of the patent and form a good faith belief that it was invalid or that it was not infringed. Plaintiff was represented by competent counsel, but apparently relied on her own faulty analysis to conclude that she could continue to use plaintiff's photographs. Her reasoning (i.e., that she could do so until she was convinced that this Court and others believed her when she said she had not stolen the pictures she was using in her brochure) does not make an arguable challenge to plaintiff's claim of infringement. See Maverick Recording Co. v. Harper, 598 F.3d 193, 199 (5th Cir. 2010) (finding that defendant cannot stand on her own understanding of copyright law-or lack thereof-to avoid enhanced damages). Otherwise, Ms. White a sophisticated and aggressive legal stance as a party to this litigation and in fact instituted a separate action against plaintiff for libel and slander unrelated to copyright law. Id. (holding that defendant "cannot rely on her legal naivety" to defeat a finding of willfulness). Moreover, defendants' size and financial condition are greater than plaintiff's and this was not a close case with the Court having ruled in favor of both plaintiff and defendants on the claims raised. Importantly, Ms. White took no remedial action. Instead, for more than two years following notice of this litigation, Ms. White continued to distribute the infringing brochure. This infringement continued for the purpose of making money for her Leadership at the Diamond A program.
In sum, Ms. White did not form an objectively reasonable belief that she was not infringing on plaintiff's patent when she made the decision to continue to infringe for more than two years after she received notice that plaintiff had filed suit. As with the retailer, this is true even though she had stopped using the photographs at issue by the time this Court entered its order determining that plaintiff is a valid copyright holder. See Domestic Fabrics Corp., 326 F.Supp.2d at 701 (rejecting retailer's argument that it acted in good faith by "stopping the ordering and selling of the garments at issue by the time this court entered its order of claim construction" more than two years after plaintiff filed suit for infringement).
Having found the record supports an enhanced award for willful misconduct, the next question is the appropriate amount of damages. In determining the amount of the enhancement, the Court must avoid making an "award premised on penalizing the defendants instead of compensating the plaintiff." Dial One, Inc., 269 F.3d at 527. The Second Circuit in Fitzgerald Publishing Co., Inc. v. Baylor Publishing Co., 807 F.2d at 5115, explained:
It is plain that "willfully" infringing and "innocent intent" are not the converse of one another. Thus, it is possible in the same action for a plaintiff not to be able to prove a defendant's willfulness and, at the same time, for the defendant to be unable to show that it acted innocently. But in indicating what conduct will reduce the penalty, the statutory language also suggests what conduct should increase the penalty. Thus, just as the lack of actual or constructive knowledge will establish an innocent intent, so a defendant's actual or constructive knowledge proves willfulness.807 F.2d at 1115.
In this case, the Court declines to enhance the statutory damages in the maximum amount of $150,000. While the Court has found that Ms. White committed infringement "willfully," her conduct is mitigated at least in part by the history of this case, including the entry of summary judgment in favor of defendants' on plaintiff's claim that defendants violated his copyright by publishing his photographs on defendants' website. With regard to the conduct of plaintiff, the Magistrate Judge explained that he is not blameless:
Throughout this case, Cullum has characterized White as a sophisticated business woman who took advantage of his photos for personal profit. He further maintained that White used the differences in the parties' socioeconomic status to obtain an unfair advantage in this case. Cullum has consistently accused White of bad faith, deception, misconduct, and criminal activity. Yet, a state court found that Cullum defamed White and rendered a verdict in White's favor in the amount of $200,000.00.Report and Recommendation, docket no. 185, p. 11. Moreover, although plaintiff complained of Ms. White's failure to stop using his photographs when he notified her that she was using copyrighted photographs, it is plaintiff, not defendants, who protracted this dispute. As set forth in the report:
[Plaintiff] Cullum persisted in seeking discovery of White's Mary Kay retirement income when nothing indicated that income related in any way to the use of the photos. At least once, White offered to settle this dispute-by setting aside the $200,000.00 state-court damage award and waiving Judge Rodriguez's $4,375.00* sanctions award for improper removal. Even after the district court determined liability and clearly instructed the parties that the only remaining issue before the Court was damages, Cullum persisted in filing extraneous and unrelated motions and briefs, including asking the court to refer his allegations about the defendants' attorney for criminal investigation.Id. at 15 (footnote citations to the record omitted) (asterisk added, see footnote 1).
For the reasons set forth above, defendants are liable for willful misconduct upon which an enhanced damages award may be based. The Court, in the exercise of its discretion, based on all the facts and circumstances, assesses enhanced damages against defendants in the amount of $200.
Finally, with respect to requests for attorneys' fees and costs, this Court agrees with the assessment of the Magistrate Judge. As discussed in the report:
Cullum seeks an award of costs and attorney's fees in the amount of $233,786.65. Copyright law permits the district court to award costs and a reasonable attorney's fee to a prevailing party. "Prevailing plaintiffs and prevailing defendants are to be treated alike, but attorney's fees are to be awarded to prevailing parties only as a matter of the court's discretion. [fn. 57: Fogerty v. Fantasy, 510 U.S. 517, 34 (1994)]. In exercising equitable discretion, courts may consider such factors as "`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.'" [fn. 58: Fogerty, 510 U.S. at 534 n. 19 (quoting the Third Circuit and agreeing with considering the factors "so long as such factors are faithful to the purposes of the Copyright Act and are applied to prevailing plaintiffs and defendants in an evenhanded manner).]Report and Recommendation, docket no. 185, p. 15. In this case, both plaintiff and defendants prevailed on a copyright claim-plaintiff on the claim regarding the brochure, and defendants on the claim regarding the website. As explained by the Magistrate Judge, consideration of the above factors does not weigh in favor of an award of attorney's fees and costs for either side in this dispute. Id. at 15-17. Additionally, plaintiff's attorney made no attempt to segregate costs and attorney's fees associated with the claim on which plaintiff prevailed (the brochure claim) from the costs and attorney's fees associated with the claim on which he did not prevail (the website claim). Id. at 18. Moreover, plaintiff's attorney did not submit the information needed to apply theJohnson factors to his request. Id. Rather, plaintiff's attorney "boldly asserted entitlement to costs and attorney fees in the amount of $223,786.65." Id. (also noting that "[a]lthough defendants asserted a right to costs and attorney's fees, defendants at least recognized that an award lies within the court's discretion."). For these and the reasons discussed in the report, as prevailing parties, each side should bear its respective costs and attorney's fees.
An amount reflecting over-lawyering, the history of unrelated personal animosities between the parties, unnecessary acerbic shrillness and unprofessional tactics such as improper removal (*) and making criminal allegations in a civil suit (docket no. 102).
In sum, the Report and Recommendation of the United States Magistrate Judge will be ACCEPTED in PART and REJECTED in PART. Specifically, the Court will ACCEPT the recommendation awarding statutory damages in favor of plaintiff based on one work infringed in the minimum amount of $750. The Court will REJECT the recommendation denying plaintiff's request for enhanced damages and AWARD plaintiff an additional $200 for defendants' willful infringement. The Court will ACCEPT the remaining recommendations: (1) enjoining defendants from using any photograph taken by plaintiff for any purpose; (2) finding that to the extent a Lanham Act claim is possible, plaintiff has waived this claim by never prosecuting the claim; (3) finding that each side should bear its own costs and attorney's fees; and (4) recommending entry of final judgment without further proceedings. Having accepted these recommendations, pending motions shall be dismissed as moot.
IT IS THEREFORE ORDERED that the Report and Recommendation (docket no. 185) of the United States Magistrate Judge is ACCEPTED in PART and REJECTED in PART pursuant to 28 U.S.C. § 636(b)(1) such that: statutory damages are AWARDED in favor of plaintiff for one work infringed in the minimum amount of $750; enhanced damages are AWARDED in favor of plaintiff for defendants' willful infringement in the amount of $200; defendants are ENJOINED from using any photograph taken by plaintiff for any purpose; to the extent a Lanham Act is possible, plaintiff has waived this claim by never prosecuting the claim; each side shall bear its own costs and attorney's fees; and final Judgment shall be entered without further proceedings; and pending motions are dismissed as moot.
It is so ORDERED.
SIGNED this 22th day of December, 2010.