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Richie ramone and Attorney's Fees

By Senior Copyright Counsel, Google Inc.

On May 2, I did a post on a suit brought by Richard Reinhardt, p/k/a Richie Ramone and Richie Beau against his former band members, Wal-Mart, and Realnetworks about digital downloads. He lost, with the court finding the governing contractual provision clear and unambiguous. The prevailing defendants moved for their attorney's fees. The judge denied them a week ago, 2008 WL 2704412 (S.D.N.Y. July 10, 2008)(N0. 07 Civ. 8233)(Scheindlin, J.).

The court's most recent opinion contrasts sharply with that of Judge Posner's in the Eagle case which I also posted out recently, here. In the Eagle opinion, Judge Posner noted the continued refusal of courts to implement the Supreme Court's Fogerty opinion, handed down 14 years ago in 1994, to be even handed in the discretionary decision to award attorney's fees to the prevailing party. The Supreme Court didn't mandate any particular approach, but said whatever approach you choose should be applied both to plaintiffs and defendants. It should be noted that this doesn't break down into copyright owners and users -- Fogerty, who was the defendant, was the original songwriter of the allegedly infringing song, ultimately held not to be infringing.

Regardless of whether one agrees with Judge Posner's policy arguments, it seems clear to me as a reader of lots of opinions, that trial courts continue a strong bias of not awarding fees to prevailing defendants, especially where the plaintiff is an individual copyright owner. There may be good reasons in particular cases not to award fees, but taken as a whole, not much has changes since Fogerty at the trial court level. The court of appeals seem to be doing a much better job.

Back to Richie Ramone. Here is the what the district court said in denying the fees . The court had found that the governing contractual provision was clear and ambiguous. Were there then any novel or close questions of law? No. The court wrote: "I cannot characterize plaintiff's claims as presenting novel or close issues or clarifying the boundaries of copyright law... ." To me, given clear facts, the fees should have been awarded, unless fees wouldn't be awarded to prevailing plaintiffs under such circumstances, a doubtful proposition -- I think they would (and should) be. So, what was the basis for denying the fees: "I cannot say, under the circumstances, that the[] [claims] are 'patently devoid of legal or factual basis.'" Given the court's holdings on the law and the facts in Richie's case, I don't know what sort of arguments would be patently devoid if his weren't.

The court cites only to one other district opinion for its standard, and that opinion was also one brought by an unsuccessful individual copyright owner. If Richie had have prevailed, does any doubt that he would have been awarded his fees? The dual standard lives on in the lower courts.

Full post as published by The Patry Copyright Blog on July 17, 2008 (boomark / email).