Fine v. Baer

Decision Date05 April 2017
Docket NumberCase No: 5:15-cv-21-Oc-28PRL
CourtU.S. District Court — Middle District of Florida

In this copyright case, which involves Defendants' use of a photograph Plaintiff took of a copper bucket that was recovered from a shipwreck, Plaintiff now seeks his attorney's fees, costs, and litigation expenses. (Doc. 57). The motion is ripe only as to Defendant Tyrrell L. Armstrong; it is stayed as to Defendant Robert H. Baer, who filed a suggestion of bankruptcy. (Docs. 63, 67). Upon referral, I recommend that the motion be granted in substantial part.


In 1991, Plaintiff took photographs of treasure and artifacts recovered off the coast of Florida from the wreck of the Spanish vessel, San Miguel de Archangel. One of those photographs is the so-called "copper bucket photo," which featured Peter Leo (a non-party generally credited with discovering the ship's wreckage) holding a salvaged copper bucket. In 2000, Plaintiff published a children's book called Diving for Treasure, in which he reproducedvarious photographs, including the copper bucket photo. On December 12, 2001, the text and photographs of Diving for Treasure were registered in the United States Copyright Office under Certificate of Registration No. TX 5-466-160, listing Plaintiff as the sole copyright claimant.

In August 2011, Defendant Baer authored and Defendant Armstrong published a book called The Last Voyage of the San Miguel de Archangel ("The Last Voyage"), which also included the copper bucket photo. Although there is some dispute as to when Plaintiff learned of the infringement, on January 18, 2013, he sent a letter to Defendants notifying them of the infringement. On March 8, 2014, Armstrong replaced the infringing photograph in the The Last Voyage with a different, non-infringing photo.2 Plaintiff sent several communications to Defendants regarding the alleged copyright violations, and by letter dated July 26, 2014, he offered to settle the claim for $5,000 in damages. (Docs. 1 at 14-18, 57-1, 57-2). Plaintiff claims that Defendants did not respond to his pre-suit notices and settlement demands. (Doc. 57 at 2).

On January 13, 2015, Plaintiff filed this action against Defendants asserting one claim for copyright infringement under 17 U.S.C. § 501 related to several photographs, including the Copper Bucket photograph. (Doc. 1). Plaintiff requested money damages, attorney's fees, costs, and a permanent injunction. (Doc. 1). Armstrong filed a pro se Answer (Doc. 9), but later, Rob Cook, Baer's counsel, filing a notice of appearance on his behalf. (Doc. 32). Baer initially filed a motion to dismiss (Doc. 12) that was denied (Doc. 28), then an Answer asserting fourteen affirmative defenses. (Doc. 29). Defendant Armstrong later adopted these affirmative defenses. (See e.g., Docs. 37, 39, 45). During January and February of 2016, depositions were conducted of Plaintiff, Defendants, and non-party Peter Leo.

In March and April 2016, Defendants made offers to settle the claim for $5,000 and then $10,000, inclusive of attorney's fees. Plaintiff rejected the settlement offers.

On April 7, 2016, the parties filed a joint stipulation in which Defendants conceded that Plaintiff "owned the photograph and [that] it was published in . . . The Last Voyage without Plaintiff's permission." (Doc. 37). Defendants also withdrew six of their affirmative defenses, but sought to continue litigating the remainder: the defenses of laches, statute of limitations, permission, third-party liability, and waiver. The parties' stipulation provides that:

[S]ubject to the remaining affirmative defenses, Plaintiff is entitled to: (a) damages under 17 U.S.C. [§504], and may elect to recover either Plaintiff's actual damages and any additional profits of the Defendants, as provided in 17 U.S.C. §504(b), or statutory damages, as provided in 17 U.S.C. § 504(c); (b) injunctive relief as may be appropriate under 17 U.S.C. §502; and (c) costs and attorneys' fees, in the discretion of the Court, under 17 U.S.C. §505.

Plaintiff then moved for partial summary judgment on liability. (Doc. 38). The Court granted the motion with respect to Defendants' affirmative defenses for permission, third-party liability, and waiver, but denied the motion as to the defenses of laches and statute of limitations. (Doc. 42). Accordingly, the case was set to proceed to jury trial on the remaining defenses and on the issue of damages as to both Defendants. (See Doc. 45).

The court conducted the final pretrial conference on September 23, 2016, with jury trial set to begin on October 3, 2016. Then on September 28, 2016, the parties filed a joint stipulation in which they agreed that Defendants' infringement was unintentional and the parties stipulated for entry of judgment against Defendants, jointly and severally, for statutory damages in the amount of $12,000.00, exclusive of Plaintiff's attorney's fees and costs. (Doc. 53). On September 29, 2016, the Court entered final judgment pursuant to the parties' joint stipulation. (Doc. 55). Plaintiff subsequently filed a bill of costs (Doc. 56) and the instant motion (Doc. 57). BothDefendants opposed the motion (Doc. 58) and after Defendant Baer's suggestion of bankruptcy, Defendant Armstrong provided an additional response. (Doc. 68).

A. Attorney's Fees

Plaintiff seeks to recover $67,413.00 in attorney's fees for the prosecution of this case. In considering a motion for attorney's fees and costs, "the threshold issue . . . is always entitlement." Universal Physician Services, LLC v. Del Zotto, 8:16-cv-1274-T-36JSS, 2017 WL 343905, *2 (M.D. Fla. January 6, 2017).

1. Plaintiff is Entitled to an Award of Attorney's Fees

Here, Plaintiff seeks to recover attorney's fees pursuant to the Copyright Act, which expressly provides that the court may, in its discretion, "allow the recovery of full costs by or against any party . . . [and] may also award a reasonable attorney's fee to the prevailing party as part of the costs." See 17 U.S.C. § 505. Attorney's fees are not awarded as a matter of course; instead, a court "must make a more particularized, case-by-case assessment." Kirtsaeng v. John Wiley & Sons, Inc., 136 S.Ct. 1979, 1985 (2016) (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 533 (1994)). "The touchstone of attorney's fees under § 505 is whether imposition of attorney's fees will further the interests of the Copyright Act, i.e., by encouraging the raising of objectively reasonable claims and defenses, which may serve not only to deter infringement but also to ensure 'that the boundaries of copyright law are demarcated as clearly as possible' in order to maximize the public exposure to valuable works." Mitek Holdings, Inc. v. Arce Engineering Co., Inc., 198 F.3d 840, 842 (11th Cir.1999) (quoting Fogerty, 510 U.S. at 526-27). Nonexclusive factors for the court to consider in determining whether to award fees include: frivolousness, motivation, objective unreasonableness (both in factual and legal components of case), and the need inparticular circumstances to advance considerations of compensation and deterrence. Fogerty, 510 U.S. at 535; MiTek Holdings, Inc. 198 F.3d at 842.

Plaintiff was the prevailing party by virtue of the stipulated entry of judgment and Defendant Armstrong does not argue otherwise.3 This, however, is not dispositive; the Court must still consider the non-exclusive factors discussed above.

Based on my review of the record, I submit that Plaintiff's claim was both reasonable and properly motivated. Indeed, Plaintiff was attempting to enforce his valid copyright interests in the photographs contained in his book, Diving for Treasure. "It goes without saying that protection of one's copyright constitutes a permissible motivation in filing a copyright infringement action against one whom the copyright holder believes in good faith to have infringed the copyright." Luken v. Int'l Yacht Council, Ltd., 581 F.Supp.2d 1226, 1245 (S.D. Fla. 2008). In his one-count complaint, Plaintiff identified three photographs contained in the Defendants' book, The Last Voyage, that he believed to be infringing. (Doc. 1 at ¶16).4 The fact that the case (and the stipulated final judgment) ultimately focused solely on one of those photos - the copper bucket photo - does not make Plaintiff's otherwise legitimate claim frivolous or unreasonable.

Moreover, although Defendants replaced the copper bucket photo with a non-infringing photograph prior to suit, and ultimately conceded liability for the copyright violations in these proceedings, they continued to dispute this liability for over a year and a half following the filing of this case, including through summary judgment (see Doc. 39, Defendants' opposition to Plaintiff's motion for partial summary judgment) and the final pretrial conference (see, e.g., Doc. 45, the parties' joint final pretrial statement that states, in paragraphs 11 & 12, at p. 5, thatDefendants' defenses of statute of limitations and laches are still in dispute). Indeed, even after stipulating on April 7, 2016, that Plaintiff "owned the photograph and [that] it was published in . . . The Last Voyage without Plaintiff's permission" (Doc. 37), Defendants continued to assert several affirmative defenses. (See, e.g., Doc. 45). As a result, Plaintiff incurred legal expenses preparing the motion for partial summary judgment (Doc. 38), which was granted as to several of the defenses, and then preparing for trial. It was not until September 28, 2016 - after the final pretrial conference and five days before the scheduled jury trial - that Defendants finally stipulated to the entry of judgment against them.

An award of fees will therefore compensate Plaintiff for having to litigate the claim, and will deter future parties from acts of infringement. In addition, an award of fees will encourage pl...

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