Fantasy, Inc. v. Fogerty

• Decision Date: 26 August 1996
• Docket Number: 95-16138,Nos. 95-16040,s. 95-16040
• Citation: 94 F.3d 553
• Parties: , 1996 Copr.L.Dec. P 27,557, 39 U.S.P.Q.2d 1933, 96 Cal. Daily Op. Serv. 6324, 96 Daily Journal D.A.R. 10,385 FANTASY, INC., Plaintiff-Appellant, Cross-Appellee, v. John C. FOGERTY, Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 553

94 F.3d 553

65 USLW 2164, 1996 Copr.L.Dec. P 27,557,

39 U.S.P.Q.2d 1933,

96 Cal. Daily Op. Serv. 6324,

96 Daily Journal D.A.R. 10,385

FANTASY, INC., Plaintiff-Appellant, Cross-Appellee, v. John C. FOGERTY, Defendant-Appellee, Cross-Appellant.

Nos. 95-16040, 95-16138.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 10, 1996.

Decided Aug. 26, 1996.

Albert M. Bendich and Paul N. Halvonik, Berkeley, California, for plaintiff-appellant-cross-appellee.

Kenneth I. Sidle, Gipson, Hoffman & Pancione, Los Angeles, California, for defendant-appellee-cross-appellant.

Appeals from the United States District Court for the Northern District of California, Samuel Conti, District Judge, Presiding. D.C. No. CV-85-04929-SC.

Before: WOOD, Jr., ^* CANBY, and RYMER, Circuit Judges.

RYMER, Circuit Judge:

This appeal requires us to consider the scope of a district court's discretion to award a reasonable attorney's fee to a prevailing defendant in a copyright infringement action, and in particular, to decide whether a court must find some "culpability" on the part of the plaintiff in pursuing the suit before it can award a fee to a prevailing defendant whose victory on the merits furthers the purposes of the Copyright Act.

John Fogerty, former lead singer and songwriter for "Creedence Clearwater Revival," recognized as one of the greatest American rock and roll bands, successfully defended a copyright infringement action in which Fantasy, Inc., alleged that Fogerty had copied the music from one of his earlier songs which Fantasy now owned, changed the lyrics, and released it as a new song. After concluding that Fogerty's victory on the merits vindicated his right (and the right of others) to continue composing music in the distinctive "Swamp Rock" style and genre and therefore furthered the purposes of the Copyright Act, the district court awarded Fogerty $1,347,519.15 in attorney's fees. Fantasy appeals the award mainly on the ground that the court had no discretion to award Fogerty any attorney's fees inasmuch as its conduct in bringing and maintaining the lawsuit was "faultless."

We hold that, after Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994), an award of attorney's fees to a prevailing defendant that furthers the underlying purposes of the Copyright Act is reposed in the sound discretion of the district courts, and that such discretion is not cabined by a requirement of culpability on the part of the losing party. As we agree with the district court that Fogerty's victory on the merits furthered the purposes of the Copyright Act, and as we cannot say that the district court abused its discretion by awarding fees under the circumstances of this case, we affirm the award. We also uphold the district court's exercise of discretion not to award interest on Fogerty's fee award.

I

This action began July 26, 1985, when Fantasy sued Fogerty for copyright infringement alleging that Fogerty's song "The Old Man Down the Road" infringed the copyright on another of his songs, "Run Through the Jungle," which Fantasy owned. About three years later, on November 7, 1988, the jury disagreed, returning a verdict in favor of Fogerty.

Fogerty moved for a reasonable attorney's fee pursuant to 17 U.S.C. § 505. ¹ The district court denied the request on the ground that Fantasy's lawsuit was neither frivolous nor prosecuted in bad faith and our then-existing precedent precluded an award of fees in the absence of one or the other. See Cooling Systems & Flexibles, Inc. v. Stuart Radiator, Inc., 777 F.2d 485, 493 (9th Cir.1985). We affirmed for the same reason, Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1533 (9th Cir.1993) [Fogerty I ], but the Supreme Court reversed and remanded in Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994) [Fogerty II ]. We then remanded to the district court for further proceedings consistent with Fogerty II. Fantasy, Inc. v. Fogerty, 21 F.3d 354 (9th Cir.1994) [Fogerty III ].

On remand, the district court granted Fogerty's motion and, after reviewing extensive billing records, awarded $1,347,519.15. Its decision was based on several factors. First, Fogerty's vindication of his copyright in "The Old Man Down the Road" secured the public's access to an original work of authorship and paved the way for future original compositions--by Fogerty and others--in the same distinctive "Swamp Rock" style and genre. Thus, the district court reasoned, Fogerty's defense was the type of defense that furthers the purposes underlying the Copyright Act and therefore should be encouraged through a fee award. Further, the district court found that a fee award was appropriate to help restore to Fogerty some of the lost value of the copyright he was forced to defend. In addition, Fogerty was a defendant author and prevailed on the merits rather than on a technical defense, such as the statute of limitations, laches, or the copyright registration requirements. Finally, the benefit conferred by Fogerty's successful defense was not slight or insubstantial relative to the costs of litigation, nor would the fee award have too great a chilling effect or impose an inequitable burden on Fantasy, which was not an impecunious plaintiff.

Fogerty also sought interest to account for the lost use of the money paid to his lawyers over the years. While the district court awarded Fogerty almost all of what he asked for in fees, it declined to award interest. Fantasy timely appeals the fee award; Fogerty timely cross-appeals the refusal to award interest.

II

We review the district court's decision to award attorney's fees under the Copyright Act for an abuse of discretion, Maljack Productions v. GoodTimes Home Video Corp., 81 F.3d 881, 889 (9th Cir.1996), but "any elements of legal analysis and statutory interpretation which figure in the district court's decision are reviewable de novo," Hall v. Bolger, 768 F.2d 1148, 1150 (9th Cir.1985). "A district court's fee award does not constitute an abuse of discretion unless it is based on an inaccurate view of the law or a clearly erroneous finding of fact." Schwarz v. Secretary of Health & Human Serv., 73 F.3d 895, 900 (9th Cir.1995) (internal quotations and citation omitted).

III

Fantasy contends that the district court had no discretion to award fees to Fogerty because Fantasy conducted a "good faith" and "faultless" lawsuit upon reasonable factual and legal grounds, or to put it somewhat differently, because Fantasy was "blameless." According to Fantasy, once the district court could find no fault in the way Fantasy conducted this case, that should have been the end of the matter. To award fees nevertheless, Fantasy contends, is incompatible with Fogerty II 's rule of evenhandedness as evenhandedness cannot be achieved by rewarding each side for qualities that adhere only to that side. To do so, as Fantasy contends the district court did here, is tantamount to the British Rule's automatic fee award to the victor--which Fogerty II rejected. Rather, it submits, the court's discretion may only be informed by factors having to do with culpability that are capable of being applied equally to prevailing plaintiffs and prevailing defendants.

Fogerty, on the other hand, contends that Fogerty II focuses a district court's discretion on whether the prevailing party has furthered the purposes of the Copyright Act in litigating the action to a successful conclusion; under that standard, the district court was well within its discretion in finding that his successful defense of this action served important copyright policies. He also argues that the evenhanded approach does not mean that only "neutral" factors may be considered in the exercise of the court's discretion since, contrary to Fantasy's view, the Court itself recognized that somewhat different policies of the Copyright Act may be furthered when either plaintiffs or defendants prevail. Fogerty points out that the Court specifically observed that his successful defense of this action "increased public exposure to a musical work that could, as a result, lead to further creative pieces," Fogerty II, 510 U.S. at 527, 114 S.Ct. at 1030, and maintains that the fact that this factor happened to tip in Fogerty's favor as a prevailing defendant in this case should not prevent it from being considered at all.

A

In Fogerty II, the Supreme Court granted certiorari to resolve a conflict among the circuits concerning "what standards should inform a court's decision to award attorney's fees to a prevailing defendant in a copyright infringement action...." Id. at 519, 114 S.Ct. at 1026. The Court rejected both the "dual" standard that we had followed and applied in Fogerty I--whereby prevailing plaintiffs generally were awarded attorney's fees as a matter of course, while prevailing defendants had to show that the original lawsuit was frivolous or brought in bad faith--and the "British Rule" for which Fogerty argued--whereby the prevailing party (whether plaintiff or defendant) automatically receives fees. The Court instead adopted the "evenhanded" approach exemplified by the Third Circuit's opinion in Lieb v. Topstone Indus., Inc., 788 F.2d 151 (3d Cir.1986). ² The Court held that

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. "There is no precise rule or formula for making these determinations," but instead equitable discretion should be exercised "in light of the considerations we have identified."

Fogerty II, 510 U.S. at 534, 114 S.Ct. at 1033 (quoting Hensley v. Eckerhart, 461 U.S. 424, 436-437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). Considerations discussed by the Court include the Copyright Act's primary objective, "to encourage the production of original literary, artistic, and musical expression for the good of the public," ...