Griner v. King
| Decision Date | 22 February 2023 |
| Docket Number | 21-CV-4024-CJW-MAR |
| Parties | LANEY MARIE GRINER and SAM GRINER, Plaintiffs, v. STEVEN ARNOLD KING and KING FOR CONGRESS, Defendants. |
| Court | U.S. District Court — Northern District of Iowa |
1. The Effect of An Offer of Judgment on Attorney's Fees
2. Copyright Claim a. Applicable Law b. Analysis
3. Invasion of Privacy Claim
1. Applicable Law
2. Defendants' Post-Offer Costs a. Trial Transcript Estimate b. Copying Costs
3. Plaintiffs' Post-Offer Costs
1. Applicable Law
2. Defendants' Pre-Offer Costs
3. Plaintiffs' Pre-Offer Costs
This matter is before the Court on defendants' motion for attorney's fees filed within their bill of costs (replacement) (Doc. 139) and plaintiffs' motion for attorney's fees (Doc. 141). Both parties resisted each others' motions.[1] (Docs. 149; 151). Both parties replied. (Docs. 156; 157). For the following reasons, the Court denies both parties' motions for attorney's fees, but grants-in-part and denies-in-part both parties' motions for costs.
This case involves alleged infringements of a copyrighted photographic work and an unauthorized use of a person's likeness. The Court will discuss additional facts and law as they become necessary to its analysis.
Plaintiffs Laney Marie Griner (“Laney”) and Sam Griner (“Sam”) are individuals residing in Jacksonville, Florida. (Doc. 16, at 2). Plaintiff Laney owns the registered copyright in a photograph of plaintiff Sam (the “Subject Photograph”) that formed the basis of a popular Internet meme titled “Success Kid.” (Doc. 79-2, at 1-2). Plaintiff Laney licensed the Subject Photograph commercially to advertisers Vitamin Water and Virgin Mobile, among others. (Id., at 2).
Defendant Steven King (“King”) is a former Congressman. (Doc. 80-3, at 5). Defendant King for Congress (“Committee”) is a campaign committee for defendant Steve King that owns and operates a website at www.steveking.com (“the website”), and posts various videos and pictures on the website to raise money from political donors for defendant King's campaign. (Id., at 2, 5). Defendant Committee owns or controls the Facebook Page, a Twitter account, a Flickr account, a Winred page, and their own website. (Doc. 79-3, at 115).
During defendant King's campaign in 2020, defendant Committee used an independent contractor named Michael Stevens to create and circulate memes throughout social media. (Doc. 80-3, at 6). Defendant King, Jeff King (the Campaign Manager), and Michael Stevens, are “involved in making or editing the Steve King pages[.]” (Doc. 79-3, at 115-16). Michael Stevens created a Meme Action Post (“the Post”) incorporating part of the Subject Photograph. (Doc. 80-3, at 3, 6). The Post places the image of plaintiff Sam on a different background than that of the Photograph. (Id., at 3). The Post was displayed on a Winred, Inc. server and on defendant Committee's Facebook Page. (Docs. 80-3, at 3, 4, and 6; 79-3, at 3, 106).
On December 30, 2020, plaintiffs filed a complaint against defendants Steven King, Committee, Winred, Inc., and Does 1-10 in the United States District Court for the District of Columbia. (Doc. 1). On April 7, 2021, plaintiffs filed an amended complaint naming the same defendants but including more factual allegations against all defendants. (Docs. 16; 17-1). On May 3, 2021, plaintiffs voluntarily dismissed claims against Winred, Inc. (Doc. 28). On May 17, 2021, the remaining defendants filed a first motion to dismiss for lack of personal jurisdiction and failure to state a claim, as well as a motion to transfer case. (Doc. 29). On June 2, 2021, both parties moved to transfer this matter to the Northern District of Iowa. (Doc. 32). On June 21, 2021, the case was so transferred. (Doc. 34).
On July 21, 2021, defendants filed a second motion to dismiss for failure to state a claim. (Doc. 43). The Court denied that motion. (Doc. 57). Plaintiffs and defendants then filed cross motions for summary judgment. (Docs. 79; 80). The Court denied these motions as well. (Docs. 86; 96).
On October 3, 2022, defendants extended an offer of judgment to plaintiffs under Rule 68 of the Federal Rules of Civil Procedure. (Doc. 139-3, at 39, 41, 44-45). Plaintiffs did not accept.
A jury trial was held on this matter between November 14, 2022, and November 18, 2022. (Docs. 121; 122; 123; 125; 128). The jury granted a verdict in favor of plaintiff, finding that defendant Committee committed innocent infringement of the Success Kid Photograph. (Doc. 130, at 3). The Court thus entered judgment in favor of Laney Griner for $750. (Doc. 131).
The parties filed post-trial motions and timely resisted each other's motions.
Defendants move for costs and fees of this action under Rule 68 of the Federal Rules of Civil Procedure. (Doc. 139-2, at 2). For the following reasons, the Court finds that defendants are not entitled to attorney's fees. Although Rule 68 of the Federal Rules of Civil Procedure entitles defendants to a consideration of attorney's fees under the Copyright Act, that award of attorney's fees is still subject to the Court's discretion as guided by several factors. In this case, those factors do not support an award of attorney's fees to defendants.
1. The Effect of An Offer of Judgment on Attorney's Fees
Rule 68 of the Federal Rules of Civil Procedure provides:
“[A]ll costs properly awardable in an action are to be considered within the scope of Rule 68 ‘costs.'” Marek v. Chesny, 473 U.S. 1, 9 (1985). “Thus, absent congressional expressions to the contrary, where the underlying statute defines ‘costs' to include attorney's fees, we are satisfied such fees are to be included as costs for purposes of Rule 68.” Id. The Marek Court then concluded that because the underlying statute “awarded attorney's fees ‘as part of the costs,'” such fees are “subject to the cost-shifting provision of Rule 68.” Id.
The Court of Appeals for the Eighth Circuit has held that when “a plaintiff . . . refuses an offer of judgment under Rule 68 and later fails to receive a more favorable judgment[,]”attorney's fees “are awardable to defendants . . . only if the underlying statute awards such fees.” O'Brien v. City of Greers Ferry, 873 F.2d 1115, 1120 (8th Cir. 1989). There, the court followed the First Circuit's reasoning in Crossman v. Marcoccio, 806 F.2d 329 (1st Cir. 1986), and held “a plaintiff who refuses an offer of judgment under Rule 68 and later fails to receive a more favorable judgment must pay the defendant's post-offer costs.” O'Brien, 873 F.2d at 1120; Pittari v. Am. Eagle Airlines, Inc., 468 F.3d 1056, 1064 (8th Cir. 2006). The O'Brien court further held “attorney's fees are awardable to defendants in such cases only if the underlying statute awards such fees.” O'Brien,873 F.2d at 1120; see Borup v. CJS Sols. Grp., L.L.C., 333 F.R.D. 142, 148 (D. Minn. 2019).
Turning to the Copyright Act, the question becomes when or whether a plaintiff who prevails in a copyright suit for less than a defendant's Rule 68 offer must pay that defendant's attorney's fees under Section 505. Section 505 provides that in a copyright action:
[T]he court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except where otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs.
17 U.S.C. § 505.
It is true Section 505 defines attorney's fees as part of the costs. The question under Marek and its progeny, however, is whether “congressional expressions to the contrary” indicate when or whether attorney's fees are not part of the costs. Marek, 473 U.S. at 9. In finding this, the Court must give full effect to each word of the statute. Liu v. Sec. & Exch. Comm'n, 140 S.Ct. 1936, 1948 (2020) () (citation omitted).
Here under Section 505, the Court may provide “recovery of full costs by or against any party” subject to exceptions...
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