United States District Court, S.D. Alabama, Southern Division
RICHARD N. BELL, Plaintiff,
SANDY FROST, et al., Defendants.
K. DuBOSE, CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the court on Defendants' motion for
attorney's fees and costs (Doc. 38); Plaintiff's
opposition to Defendants' motion (Doc. 40); and
Defendants' reply to Plaintiff's opposition. (Doc.
a copyright infringement claim regarding a 2000 photograph of
the Indianapolis skyline taken by Plaintiff Richard N. Bell
(Bell). Bell alleges the photograph was used without his
permission on a website by Defendants Sandy Frost (Frost) and
Roberts Brothers, Inc. (RB) (and Defendants). According to
Bell, he published the photograph in August 2000 via the
online service Webshots and since 2004, Bell sold commercial
license(s) for the photograph. Bell registered his copyright
in the photograph with the U.S. Copyright Office in 2011.
alleged in the complaint, Bell discovered the unauthorized
use of his photograph at
(webpage). Per Bell, Frost and RB has complete control over
both the website and webpage. On December 14, 2017, Bell
notified Frost in writing about the infringement on the
photograph and demanded payment for unauthorized use; Frost
refused. Bell also demanded that Frost remove the photograph
from the website; the photograph was not removed. As of April
19, 2019, Frost's webpage still featured the photograph.
Bell initiated this copyright infringement action against
Frost and RB on May 10, 2019. (Doc. 1).
contrast, Defendants contend neither Frost nor RB maintained,
controlled, or authorized the webpage or website. Defendants
contend the claims against Frost and RB were previously
released because Bell filed an identical claim against the
National Association of Realtors regarding the same
photograph. Bell settled the claim for $15, 000 and the case
was dismissed with prejudice. Defendants contend that in
return for the settlement award, Bell released the National
Association of Realtors and its members from any liability
for use of the photograph. Frost and RB are both members of
the National Association of Realtors.
summary judgment, this Court ruled, “the Court is
satisfied that Defendants have presented unrebutted
substantial evidence that Bell's current claims have been
waived in the prior litigation.” (Doc. 37 at 7). The
settlement was “clear and unambiguous and is a full and
expansive general release” that included the Defendants
to this case. (Id.). This was the clear intention of
the parties in entering the prior settlement agreement.
Further, “Bell released any and all known/unknown
claims, of every nature and kind, promised never again to
assert any claim based on the photograph (yet improperly has
via this litigation), and fully and forever settled all
disputes/claims (then existing and/or in the future).”
(Id.). On September 25, 2019, the Court granted
Defendants motion for summary judgment. (Doc. 37).
on this, Defendants now seek attorney's fees and costs
asserting that they are “prevailing party” under
the Copyright Act. Specifically, Defendants seek an award of
$20, 882.80 in attorney's fees and costs pursuant to 17
U.S.C. § 505, Federal Rules of Civil Procedure
54, S.D. Ala. L. R. 54.3, against Bell (Doc. 38 at 1; Doc. 41
at 6). In support, Defendants submitted the affidavit of
attorney Troy T. Schwant (Doc. 38-2), a declaration of local
counsel, Henry L. (“Max”) Cassidy (Doc. 38-3),
and billing records for this case (Doc. 38-1).
Copyright Act authorizes an award of attorney's fees to a
prevailing party. 17 U.S.C. § 505; Malibu Media, LLC
v. Pelizzo, 604 Fed.Appx. 879, 881 (11th Cir. 2015).
“The amount of fees is determined in the court's
discretion and in accordance with
the ‘Fogerty factors.'” Id.
(citing Fogerty v. Fantasy, Inc., 510 U.S. 517
(1994) (emphasis added).
is no precise rule or formula for making these
determinations.' But instead equitable discretion should
be exercised.” Hensley v. Eckerhart, 461 U.S.
424, 436-37 (1983). Factors such as the “frivolousness,
motivation, objective reasonableness (both in the factual and
in the legal components of the case), and the need in
particular circumstances to advance considerations of
compensation and deterrence” may be used to guide the
court's discretion. Fogerty, 510 U.S. at 534-35
n. 19. “However, the factors must be ‘faithful to
the purposes of the Copyright Act and [be] applied to the
prevailing plaintiffs and defendants in an evenhanded
manner.'” Thompson v. Looney's Tavern
Productions, Inc., 2008 WL 11422450, *3 (N.D. Ala. 2008)
(citing Fogerty, 510 U.S. at 535)). The Act's
purposes are furthered if the awarding of fees
“encourage[es] the raising of objectively reasonable
claims and defenses, which may serve not only to deter
infringement but also to ensure” there are clear
boundaries of copyright law. Mitek Holdings, Inc. v. Arce
Engineering Co., Inc., 198 F.3d 840, 842 (11th Cir.
to 17 U.S.C. § 505, “attorney's fees are to be
awarded to prevailing parties only as a matter of the
court's discretion.” Fogerty, 510 U.S. at
534. “In this circuit, the reasonableness of the
attorney's fee award is controlled by consideration of
the Johnson [v. Georgia Hwy. Exp., Inc.,
488 U.S. F.2d 714, 717-19 (5th Cir. 1974) factors.”
Cable/Home Commc'ns Corp. v. Network Prod.,
Inc., 902 F.2d 829, 853 (11th Cir. 1990). See e.g.,
Mitek Holdings, 198 F.3d at 843 n.2 (analyzing the
Johnson factors after finding fees were appropriate
to determine the specific award). The Johnson
factors considered to determine reasonable attorney's
1) the time and labor required; 2) the novelty and difficulty
of the questions; 3) the skill requisite to perform the legal
service properly; 4) the preclusion of other employment by
the attorney due to the acceptance of the case; 5) the
customary fee; 6) whether the fee is fixed or contingent; 7)
time limitations imposed by the client or the circumstances;
8) the amount involved and the results obtained; 9) the
experience, reputation and ability of the attorneys; 10) the
“undesirability” of the case; 11) the nature and
length of the professional relationship with the client; and
12) awards in similar cases.
Johnson, 488 F.2d at 717-19.
considering the fees requested -- and as explained in
Precision IBC, Inc. v. Phoenix Chemical Tech.,
LLC, 2017 WL 1404328, *1-2 (S.D. Ala. Apr. 19, 2017):
“Alabama follows the American rule, whereby attorney
fees may be recovered if they are provided for by statute or
by contract....” Jones v. Regions Bank, 25
So.3d 427, 441 (Ala. 2009) (citations omitted)….Under
Alabama law, such attorney's fees are recoverable;
however, recovery is subject to Alabama's imposition of a
reasonableness constraint on all fee shifting contracts, as a
mat[t]er of public policy.…
The calculation of reasonable attorney's fees is within
the sound discretion of the court. Dowdell v. City of
Apopka, Fla., 698 F.2d 1181, 1187 (11th Cir. 1983);
Kiker v. Probate Court of Mobile Cty., 67 So.3d 865,
867 (Ala. 2010)….“‘the most useful
starting point for determining the amount of a reasonable fee
is the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.'”
Watford v. Heckler, 765 F.2d 1562, 1568 (11th Cir.
1985) (quoting Hensley v. Eckerhart, 461 U.S. 424,
433…. (1983)). “The first step….is to
determine the ‘lodestar'-the product of multiplying
reasonable hours expended times a reasonable hourly
rate.” Martinez v. Hernando Cty. Sheriff's
Office, 579 Fed.Appx. 710, 713 (11th Cir. 2014) (citing
Am. Civil Liberties Union of Ga. v. Barnes, 168 F.3d
423, 427 (11th Cir. 1999)); see also Bivins v. Wrap It
Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008)
(“The product of these two figures is the lodestar and
there is a ‘strong presumption' that the lodestar
is the reasonable sum the attorneys deserve.”). The
party moving for fees bears the burden of establishing the
“reasonableness” of the hourly rate and number of
hours expended via specific evidence ...