Bell v. Frost

          ORDER

          KRISTI K. DuBOSE, CHIEF UNITED STATES DISTRICT JUDGE.

         This 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. 41).

         I. Background

         This is 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.

         As alleged in the complaint, Bell discovered the unauthorized use of his photograph at https://www.realtor.com/realestateagents/sandy-frost_8525_391994788 (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).

         In 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.

         On 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).

         Based 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).

         II. Relevant Law

         The 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).

         A. Fogerty Factors

         “‘There 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. 1999).

         B. Johnson Factors

         Pursuant 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 fees are:

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.

         When 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 ...