Hermosilla v. Coca-Cola Co., Case No. 10-21418-CIV-MOORE/TORRES
| Decision Date | 15 July 2011 |
| Docket Number | Case No. 10-21418-CIV-MOORE/TORRES |
| Parties | RAFAEL "RAFA" VERGARA HERMOSILLA, Plaintiff, v. THE COCA-COLA COMPANY, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
RAFAEL "RAFA" VERGARA HERMOSILLA, Plaintiff,
v.
THE COCA-COLA COMPANY, Defendant.
Case No. 10-21418-CIV-MOORE/TORRES
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
July 15, 2011
REPORT AND RECOMMENDATION ON DEFENDANT'S VERIFIED MOTION FOR ATTORNEY'S FEES AND FULL COSTS
This matter is before the Court on Defendant The Coca-Cola Company's ("Coca-Cola") Verified Motion for Attorney's Fees and Full Costs ("Defendant's Motion") [D.E. 188] filed May 5, 2011; Plaintiff Rafael "Rafa" Vergara Hermosilla's ("Vergara") Response in Opposition ("Plaintiff's Response") thereto [D.E. 190] filed May 23, 2011; and Defendant's Reply [D.E. 193] filed June 9, 2011. The Court has reviewed the motion, the response, the reply, related authorities submitted by the parties, and the record in this case. For the following reasons, the Verified Motion for Attorney's Fees and Full Costs should be granted in part and denied in part.
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In 2009, Vergara was hired by Coca-Cola to adapt the song "Wavin' Flag" by performer K'naan to include a verse of Spanish language lyrics in Coca-Cola's worldwide 2010 World Cup marketing campaign. These lyrics were to be sung by David Bisbal ("Bisbal"), a Spanish language performer. Vergara's dealings were primarily with Jose Puig ("Puig"), the Vice-President of Marketing at Universal Music Latin America, who was working with Coca-Cola for the campaign. Around this time, Vergara, Puig, and others discussed the possibility of Vergara receiving an adaptor's share of the profits derived from the adaptation.
On November 17, 2009, Vergara adapted the lyrics to Spanish. While in some places the adaptation was a literal translation, in other places Vergara altered the words significantly while attempting to respect the concept, rhythm, and melody of the existing song. Over the following months, a version of "Wavin' Flag" was produced using both the Spanish language lyrics and some of the original English lyrics. A video promoting Coca-Cola was also made using the new version of the song.
On February 26, 2010, Vergara's request for an adaptor's share was denied. At that time, Vergara threatened to file a lawsuit to enforce his copyright of the lyrics. On March 4, 2010, Vergara told Coca-Cola that it could not use the adapted lyrics in his song unless he received an adaptor's share. That day, Puig and Vergara spoke on the phone regarding this dispute. During this conversation Puig
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asked Vergara to agree to relinquish any copyright interest in the work. Later that day, Vergara wrote an email to Puig seeking to resolve the dispute which stated in part:
[B]ecause I am a man of my word and honor, that is not moved by economic motives, my only request is that my credits are respected as producer and adapter of the Spanish version (that every time the name of any composer of this version appears, my name appears as adapter), and obviously the credits for the production that are detailed in the invoice sent for this production, which I have detailed below.
For the adaptation, you may consider it a work for hire with no economic compensation to that respect. I believe what's legal is a dollar.
I hope that this leaves clear what my work was and what my good intentions were from the beginning.
Puig responded to this email the next day with an email stating, "Rafa, we are aware of your goodwill from the beginning, and most of all, we are aware of how hard you had to work given the little time we gave you. You can count on the credits on the track. I am resending you the contract." Also that day, Puig sent draft agreements to Vergara that did not contain a provision for Vergara receiving credit.
On March 8, 2010, Vergara sent another email to Puig, stating,
I appreciate your sending me the contracts. However, my proposal was clear and it was just that, a proposal, since you requested my help because you knew things had not been done right. My only request regarding said proposal was a series of things that are not included in what you send me. Moreover, nothing of what I proposed to you is included in the contracts.
I want you to know I'm very upset and rather disappointed, because my proposal was based more on our friendship than anything else, and what I got does not honor the agreements.
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Taking into account the above, I hereby inform you that the proposal of last Friday from which the contracts would supposedly derive is revoked as of now and without effect.
Also that day, Puig responded in an email stating, "I did not review the contracts. I will review them with the attorney right away and make any necessary changes. I'm sorry."
From this back and forth, litigation ensued. Vergara sued Coca-Cola for federal copyright infringement and other claims. Coca-Cola claimed that Vergara had been contracted to write the lyrics for Coca-Cola and had in turn impliedly licensed the lyrics to Coca-Cola. Moreover, Coca-Cola argued that the lyrics were a derivative work from a work already owned by Coca-Cola and thus immunized against an infringement action against Coca-Cola.
After extensive discovery and pretrial motion practice, on February 23, 2011, the Court entered its order granting Defendant's Renewed Motion for Summary Judgment. The Court found that the Plaintiff had failed to establish that he, in fact, had not assigned the rights to "Wavin' Flag" to Coca-Cola via the March 4-5, 2010, email exchange between Vergara and Puig. The Court held that those emails constituted a valid offer and acceptance for the purposes of satisfying 17 U.S.C. § 204. Thus, "because Coca-Cola cannot be sued based on a copyright interest it owns," the Court granted Coca-Cola summary judgment on all counts. [D.E. 170]
The pending motion followed. Coca-Cola, as the prevailing party, moved pursuant to 17 U.S.C. § 505 for recovery of $1,576,852.48 in attorneys' fees plus costs in the amount of $125,285.78, for a total award of $1,702,138.26. [D.E. 188] 11-13. Section 505 allows this Court, in its discretion, to allow the recovery of a
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reasonable attorney's fees and full costs to the prevailing party. Pursuant to this statute Coca-Cola contends that, though attorney's fees under this section are awarded only in the discretion of the trial court, an award is the rule rather than the exception. As the prevailing party Coca-Cola is presumptively entitled to an award of attorney's fees. In support of its motion, Coca-Cola relies on the following factors: (1) it achieved complete success on Vergara's claims; (2) Vergara's claims were, at a minimum, objectively unreasonable; (3) Vergara's motivation in filing and pursuing this case was improper; and (4) a fee award would advance considerations of compensation and deterrence.
Coca-Cola further argues that Vergara litigated this case without regard to the financial consequences, without regard to any actual harm he suffered, and without regard to the facts or the law, as he was aware that he had assigned the rights to his copyright interest before he initiated this lawsuit. Coca-Cola concludes that its requested attorneys' fees were reasonably incurred to defend the action, and that the hourly rates requested were customary, reasonable, and fair. Coca-Cola further requests an award of its full costs, also pursuant to section 505 and 28 U.S.C. § 1920. [D.E. 188]
Vergara contends that Coca-Cola should not be awarded attorneys' fees because (1) his claims were objectively reasonable; (2) the action was not commenced for an anti-competitive purpose or to minimize public exposure to copyrightable works; and (3) Coca-Cola's motion seeks to punish him for raising his objectively reasonable claims, which does not further the interests of the Copyright Act.
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Vergara also contends that the fee application is deficient and that Coca-Cola's invoices are insufficient to support an award of attorneys' fees. Vergara complains of block billing, duplication, inadequate description, excessive or improper redaction, improper tasks, an unsuccessful appeal, and an overall lack of billing judgment on behalf of Defendant's counsel.
Vergara also contends that Coca-Cola should only be awarded costs pursuant to 28 U.S.C. § 1920, and that Coca-Cola's Motion should be denied with leave to re-file pending the determination of his appeal of the Order presently pending before the Eleventh Circuit Court of Appeals. [D.E. 190]
A. Legal Standard
Coca-Cola seeks to recover its reasonable attorneys' fees and costs as the prevailing party under the Copyright Act. 17 U.S.C. § 505. Section 505 of the Copyright Act authorizes an award of fees in the discretion of the court and provides:
In any civil action under this title, the 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 as 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. The Copyright Act gives the Court broad discretion to determine whether a party is the prevailing party and whether the amount of the fees are reasonable. See Lieb v. Topstone Indus., Inc., 788 F.2d 151, 155-56 (3d Cir. 1986). In Fogerty, v. Fantasy, Inc., 510 U.S. 517, 526 (1986), the Supreme Court approved the following boundaries for the exercise of discretion in awarding fees under the
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Copyright Act set by the Third Circuit in Lieb: (1) a finding of bad faith is not required for an award; (2) an award is not mandated in every case; and (3) the exercise of discretion should be applied evenhandedly. Fogerty, 510 U.S. at 526 (citing with approval Lieb, 788 F.2d at 155).
The Lieb factors have been endorsed in this Circuit. MiTek Holdings, Inc. v. Arce Eng'g Co., 198 F.3d 840, 842 (11th Cir. 1999), aff'g, MiTek Holdings, Inc. v. Arce Eng'g Co., 864 F. Supp. 1568 (S.D. Fla. 1994) (Moore, J.). While the award of attorneys' fees under Section 505 lies within the...
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