121 F.2d 575 (9th Cir. 1941), 9664, Corcoran v. Columbia Broadcasting System

Docket Nº9664.
Citation121 F.2d 575, 50 U.S.P.Q. 277
Party NameCORCORAN v. COLUMBIA BROADCASTING SYSTEM, Inc., et al.
Case DateJune 30, 1941
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 575

121 F.2d 575 (9th Cir. 1941)

50 U.S.P.Q. 277

CORCORAN

v.

COLUMBIA BROADCASTING SYSTEM, Inc., et al.

No. 9664.

United States Court of Appeals, Ninth Circuit.

June 30, 1941

Blase A. Bonpane, of Hollywood, Cal., for appellant.

Frederick Leuschner and Richard Harper Graham, both of Los Angeles, Cal., for appellee Montgomery Ward & Co.

Before DENMAN, MATHEWS, and HEALY, Circuit Judges.

HEALY, Circuit Judge.

The appeal is from a judgment awarding attorneys' fees in a suit for infringement of copyright, the allowance being made under the claimed authority of Sec. § 40 of the Copyright Act (Act of March 4, 1909, c. 320, 35 Stats. 1084, 17 U.S.C.A. § 40), providing that the court 'may award to the prevailing party a reasonable attorney's fee as part of the costs.'

Appellant was the plaintiff below. The defendants (appellees) filed a motion to dismiss and 'for a further and better statement of particulars. ' In effect the motion to dismiss was denied, but the application for a more particular statement was granted with leave to appellant to amend within a stated time. Appellant did not amend, and within the time specified he moved for a voluntary dismissal. The court ordered 'that the motion of the plaintiff to dismiss be granted with allowance of costs to the defendants and such attorneys' fees as may be hereafter awarded', and the matter of attorney's fees was ordered reserved until after the trial or dismissal of a companion infringement suit in which appellant was plaintiff. 1 The latter case terminated in a

Page 576

dismissal and was the subject of an independent appeal. Corcoran v. Montgomery Ward & Co. et al., 9 Cir., 121 F.2d 572, decided June 28, 1941.

Following the dismissal in the suit just mentioned, the court turned its attention to the matter of attorneys' fees in the present suit. Concluding that the suit had been filed 'without justification, either in law or in fact ', the court awarded each of the defendants an attorney's fee of $400. The appeal followed.

Appellant claims that in view of his voluntary dismissal without prejudice, appellees were not 'the prevailing party' within the meaning of the statute; hence the court lacked power to make an award of attorneys' fees. We think this is too narrow an interpretation of the statute. The authority given is not in terms limited to the allowance of fees to a party who...

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46 practice notes
  • 556 F.Supp.2d 1209 (D.Colo. 2008), 06-cv-00225, Lorillard Tobacco Co. v. Engida
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Colorado
    • January 11, 2008
    ...see also Noxell Corp. v. Firehouse No. 1 Bar-B-Que Rest., 771 F.2d 521, 525 (D.C.Cir.1985); Corcoran v. Columbia Broad. Sys., Inc., 121 F.2d 575, 576 (9th Cir.1941). Where a party succeeds on any significant issue in a litigation, that party is considered a “prevailing party" for attor......
  • 213 P.3d 367 (Ariz.App. Div. 1 2009), 1 CA-CV 08-0534, Vicari v. Lake Havasu City
    • United States
    • Arizona Court of Appeals of Arizona
    • August 4, 2009
    ...on the merits as action was dismissed without prejudice for failure to prosecute); see also Corcoran v. Columbia Broad. Sys., Inc., 121 F.2d 575, 575-76 (9th Cir.1941) (affirming attorneys' fees award to defendants as " prevailing party" under provision of Copyright Act after plai......
  • 430 So.2d 919 (Fla.App. 3 Dist. 1983), 82-499, McKelvey v. Kismet, Inc.
    • United States
    • Florida Florida Court of Appeals Third District
    • April 19, 1983
    ...entitled to attorney's fees, it would consider such an award as a matter of discretion. See also Corcoran v. Columbia Broadcasting System, 121 F.2d 575 (9th Cir.1941); Smoot v. Fox, 353 F.2d 830 (6th Cir.1965). Even if the award of attorney's fees in this case be considered as a matter for ......
  • 979 P.2d 890 (Wash.App. Div. 2 1999), 23513-7, Beckman v. Wilcox
    • United States
    • Washington Court of Appeals of Washington
    • July 2, 1999
    ...that are broader in scope allow such awards. Gold Seal, 81 Wash.2d at 868, 505 P.2d 790; see also Corcoran v. Columbia Broadcasting Sys., 121 F.2d 575, 576 (9th Cir. [96 Wn.App. 363] 1941) (defendant was the prevailing party within the meaning of the Copyright Act and, thus, entitled to fee......
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43 cases
  • 556 F.Supp.2d 1209 (D.Colo. 2008), 06-cv-00225, Lorillard Tobacco Co. v. Engida
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Colorado
    • January 11, 2008
    ...see also Noxell Corp. v. Firehouse No. 1 Bar-B-Que Rest., 771 F.2d 521, 525 (D.C.Cir.1985); Corcoran v. Columbia Broad. Sys., Inc., 121 F.2d 575, 576 (9th Cir.1941). Where a party succeeds on any significant issue in a litigation, that party is considered a “prevailing party" for attor......
  • 213 P.3d 367 (Ariz.App. Div. 1 2009), 1 CA-CV 08-0534, Vicari v. Lake Havasu City
    • United States
    • Arizona Court of Appeals of Arizona
    • August 4, 2009
    ...on the merits as action was dismissed without prejudice for failure to prosecute); see also Corcoran v. Columbia Broad. Sys., Inc., 121 F.2d 575, 575-76 (9th Cir.1941) (affirming attorneys' fees award to defendants as " prevailing party" under provision of Copyright Act after plai......
  • 430 So.2d 919 (Fla.App. 3 Dist. 1983), 82-499, McKelvey v. Kismet, Inc.
    • United States
    • Florida Florida Court of Appeals Third District
    • April 19, 1983
    ...entitled to attorney's fees, it would consider such an award as a matter of discretion. See also Corcoran v. Columbia Broadcasting System, 121 F.2d 575 (9th Cir.1941); Smoot v. Fox, 353 F.2d 830 (6th Cir.1965). Even if the award of attorney's fees in this case be considered as a matter for ......
  • 979 P.2d 890 (Wash.App. Div. 2 1999), 23513-7, Beckman v. Wilcox
    • United States
    • Washington Court of Appeals of Washington
    • July 2, 1999
    ...that are broader in scope allow such awards. Gold Seal, 81 Wash.2d at 868, 505 P.2d 790; see also Corcoran v. Columbia Broadcasting Sys., 121 F.2d 575, 576 (9th Cir. [96 Wn.App. 363] 1941) (defendant was the prevailing party within the meaning of the Copyright Act and, thus, entitled to fee......
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2 firm's commentaries
  • Ninth Circuit Changes Its Definition of “Prevailing Party” In Copyright Cases
    • United States
    • LexBlog United States
    • August 1, 2009
    ...the defendant is the prevailing party, and therefore entitled to attorneys’ fees. Corcoran v. Columbia Broadcasting System, Inc., 121 F.2d 575, 576 (9th Cir. 1941). The Corcoran court expressly rejected the plaintiff’s contention that the dismissal without prejudice does not confer prevaili......
  • Ninth Circuit Overrules "Prevailing Party" Decision
    • United States
    • JD Supra United States
    • July 10, 2009
    ...award even where the plaintiff has voluntarily dismissed the action without prejudice. See Corcoran v. Columbia Broadcasting System, Inc., 121 F.2d 575, 576 (9th Cir. 1941). The Ninth Circuit reviewed the lower court’s decision in light of the Supreme Court’s holding in Buckhannon Bd. &......
1 books & journal articles
  • Attorneys' Fees and Other Costs
    • United States
    • Copyright remedies: a litigator’s guide to damages and other relief
    • February 4, 2014
    ...v. Dimension Films, 410 F.3d 792, 808 (6th Cir. 2005). 17. Cadkin, 569 F.3d at 1148–50, overruling Corcoran v. Columbia Broad. Sys., Inc., 121 F.2d 575, 576 (9th Cir. 1941). 18. Balsley v. LFP, Inc., 691 F.3d 747, 771–72 (6th Cir. 2012). 19. Balsley, 691 F.3d at 772 (citing Thoroughbred Sof......