Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 1 of 31 Page ID #:14060 1 Richard S. Busch (TN BPR 14594) (pro hac vice) 2 E-Mail: rbusch@kingballow.com Sara R. Ellis (TN BPR 030760) (pro hac vice) 3 E-Mail: sellis@kingballow.com KING & BALLOW 4 315 Union Street, Suite 1100 Nashville, TN 37201 5 (615) 259-3456 Fax: (615) 726-5417 Attorneys for Frankie Christian Gaye and Nona 6 Marvisa Gaye Paul H. Duvall (SBN 73699) E-Mail: pduvall@kingballow.com KING & BALLOW 6540 Lusk Blvd., Suite 250 San Diego, CA 92121 (858) 597-6000 Fax: (858) 597-6008 Attorneys for Frankie Christian Gaye and Nona Marvisa Gaye 7 Mark L. Block (SBN 115457) E-Mail: mblock@wargofrench.com 8 WARGO & FRENCH LLP 1888 Century Park East; Suite 1520 9 Los Angeles, CA 90067 (310) 853-6355 Fax: (310) 853-6333 10 Attorneys for Frankie Christian Gaye and Nona Marvisa Gaye 11 Martin R. Glick (SBN 40187) E-Mail: Martin.Glick@aporter.com Daniel B. Asimow (SBN 165661) E-Mail: Daniel.Asimow@aporter.com ARNOLD & PORTER LLP Three Embarcadero Center, 10th Floor San Francisco, CA 94111-4024 (415) 471-3100 Fax: (415) 471-3400 Attorneys for Frankie Christian Gaye and Nona Marvisa Gaye 12 13 UNITED STATES DISTRICT COURT 14 CENTRAL DISTRICT OF CALIFORNIA 15 16 PHARRELL WILLIAMS, an individual; ROBIN THICKE, an individual; and CLIFFORD HARRIS, JR., an individual, 17 18 19 20 21 22 23 24 Plaintiffs, vs. BRIDGEPORT MUSIC, INC., a Michigan corporation; FRANKIE CHRISTIAN GAYE, an individual; MARVIN GAYE III, an individual; NONA MARVISA GAYE, an individual; and DOES 1 through 10, inclusive, Defendants. _______________________________ 25 26 27 28 AND RELATED COUNTERCLAIMS Case No. CV13-06004-JAK (AGRx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND COSTS Date: March 14, 2016 Time: 8:30 a.m. Action Commenced: August 15, 2013 Hon. John A. Kronstadt, Ctrm 750 Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 2 of 31 Page ID #:14061 1 TABLE OF CONTENTS 2 3 Page I. 4 5 INTRODUCTION AND SUMMARY OF ARGUMENT ................................. 1 A. II. Case History .............................................................................................. 3 ARGUMENT....................................................................................................... 4 6 A. The Gaye Parties are the Prevailing Party ................................................ 4 7 B. The Gaye Parties are Entitled to an Award of Attorney Fees ................... 5 8 1. The Fogerty “Considerations” ........................................................ 5 9 2. The Degree of Success Obtained on the Claim .............................. 8 10 3. Factual and Legal Objective Unreasonableness ............................. 9 11 4. The Parties’ Respective Motivations ............................................ 11 12 5. The Need in Particular Circumstances to Advance Considerations of Compensation and Deterrence ........................ 13 6. Frivolousness ................................................................................ 13 13 14 C. 15 16 17 18 19 III. 20 22 23 24 B. 25 26 IV. 1. Calculating the Lodestar Figure .................................................... 14 2. Kerr Factors Confirm the Fee is Reasonable................................ 18 3. The “After the Dance” claim should not affect this Fee Petition .......................................................................................... 19 THE GAYE PARTIES SHOULD BE AWARDED NON-TAXABLE COSTS ............................................................................................................... 20 A. 21 The Amount of Attorneys’ Fees Claimed is Reasonable ........................ 14 The Gaye Parties Requirements to Litigate the Lawsuit Successfully Were Appropriate and Reasonable Given the Distinctive Characteristics of the Copyright Infringement Claim .......... 21 1. The Gaye Parties’ Expert Musicologists ...................................... 22 2. Additional Expert Witnesses for the Gaye Parties ....................... 23 The Gaye Parties’ Costs Were Reasonable and Necessary .................... 25 CONCLUSION ................................................................................................. 26 27 28 i Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 3 of 31 Page ID #:14062 TABLE OF AUTHORITIES 1 Page(s) 2 3 Cases 4 Bernal v. Paradigm Talent and Literary Agency, No. CV 07–06445 SVW, 2010 WL 6397561 (C.D. Cal. 2010) ............................. 14 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Brighton Collectibles, Inc. v. Coldwater Creek, Inc., No. 06-CV-01848-H (POR), 2009 WL 160235 (S.D. Cal. Jan. 20, 2009) ................................................................................................................... 4, 19 Brighton Collectibles, Inc. v. Pedre Watch Co., No. 11 CV-00637-AJB-WVG, 2014 WL 29008 (S.D. Cal. Jan. 2, 2014) ......................................................................................................................... 8 Broadcast Music, Inc. v. McDade & Sons, Inc., 928 F. Supp. 2d 1120 (D. Ariz. 2013) .................................................................... 13 Cadking v. Loose, 569 F.3d 1142 (9th Cir. 2009) .................................................................................. 4 City of Burlington v. Dague, 505 U.S. 557 (1992)................................................................................................ 19 Creative Computing v. Getloaded.com, LLC, 386 F. 3d 930 (9th Cir. 2004) ................................................................................. 20 Davis v. City and County of San Francisco, 976 F.2d 1536 (9th Cir. 1992) ................................................................................ 19 Discovery Commc’n, Inc., v. Animal Planet, Inc., 172 F. Supp. 2d 1282 (C.D. Cal. 2001) .................................................................. 14 DuckHole Inc. v. NBC Universal Media, LLC, No. CV 12–10077–BRO, 2013 WL 5797204 (C.D. Cal. Oct. 25, 2013) ................................................................................................................passim ExperExchange, Inc. v. Doculex, Inc., No. C-08-038-03875 JCS, 2010 WL 1881484 (N.D. Cal. May 10, 2010) ....................................................................................................................... 20 Fantasy v Fogerty, 94 F.3d 553 (9th Cir. 1996) ..........................................................2, 5, 6, 7, 8, 11, 13 Florentine Art Studio, Inc. v. Vedet K. Corp., 891 F. Supp. 532 (C.D. Cal. 1995) ....................................................................... 4, 5 Fogarty v. Fantasy, 510 U.S. 517 (1994)......................................................................1, 2, 5, 6, 7, 12, 13 Hensley v. Eckerhart, 461 U.S. 424 (1983)................................................................................................ 14 28 ii Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 4 of 31 Page ID #:14063 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Inhale, Inc. v. Starbuzz Tobacco, Inc., 755 F.3d 1038 (9th Cir. 2014) .................................................................................. 1 Intel Corp. v. Terabyte Int’l, Inc., 6 F.3d 614 (9th Cir. 1993) ....................................................................14, 15, 17, 18 IO Grp., Inc. v. Jordan, No. C 09-0884 MEJ, 2010 WL 2231793 (N.D. Cal. June 1, 2010) ....................... 11 Kerr v. Screen Actors Guild, Inc., 526 F. 2d 67 (9th Cir. 1975), cert. denied, 425 U.S. 951 (1976) ..................... 18, 19 Love v. Mail on Sunday, No. CV05-7798 ABC, 2007 WL 2709975 (C.D. Cal. Sept. 7, 2007) .................... 14 Mattel, Inc. v. MGM Entm’t, Inc., 705 F.3d 1108 (9th Cir. 2013) .................................................................................. 1 Maxwell v. Hapag-Lloyd Aktiengesellschaft, 862 F.2d 767 (9th Cir. 1988) .................................................................................. 25 Minden Pictures, Inc. v. John Wiley & Sons, Inc., No. C-12-4601 EMC, 2014 WL 1724478 (N.D. Cal. Apr. 29, 2014)...................... 8 Perfect 10, Inc. v. Giganews, Inc., No. CV 11-07098-AB SHX, 2015 WL 1746484 (C.D. Cal. Mar. 24, 2015) .................................................................................................8, 14, 18, 19, 20 Perlan Therapeutics, Inc. v. Nexbio, Inc., No. 05–cv–1855 (BEN)(BLM), 2007 WL 935619 (S.D. Cal. Mar. 19, 2007) ......................................................................................................................... 8 Quinto v. Legal Times of Wash., Inc., 511 F. Supp. 579 (D.D.C. 1981)............................................................................. 12 Stern v. Does, 978 F. Supp. 2d 1031 (C.D. Cal. 2011) .................................................................. 19 Twentieth Century Fox Film Corp. v. Entm’t Distrib., 429 F.3d 869 (9th Cir. 2005) ................................................................20, 21, 25, 26 United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403 (9th Cir. 1990) ............................................................................ 18, 19 Warren Pub. Co. v. Spurlock, No. CIV.A. 08-3399, 2010 WL 760311 (E.D. Pa. Mar. 3, 2010) .................... 11, 13 25 Winterrowd v. Am. Gen. Annuity Ins. Co., 556 F.3d 815 (9th Cir. 2009) .................................................................................. 17 26 Statutes 27 17 U.S.C. § 505 .....................................................................................................passim 28 28 U.S.C. § 1920 .......................................................................................................... 20 iii Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 5 of 31 Page ID #:14064 1 Other Authorities 2 Nimmer on Copyright § 14.10 (2015) ......................................................................... 12 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iv Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 6 of 31 Page ID #:14065 1 2 I. INTRODUCTION AND SUMMARY OF ARGUMENT Counterclaimants Nona Marvisa Gaye and Frankie Christian Gaye 3 (collectively, “Nona and Frankie Gaye”), respectfully submit this Memorandum in 4 support of their Motion for Attorneys’ Fees and Non-Taxable Costs for their 5 successful: (1) defense of the copyright action brought by Robin Thicke (“Thicke”), 6 Pharrell Williams (“Williams”), and Clifford Harris (“Harris”) (collectively, the 7 “Thicke Parties”), for a Declaration of Non-Infringement, and (2) prosecution of their 8 counterclaim of copyright infringement against the Thicke Parties as well as 9 Williams’ publishing entity, More Water From Nazareth Publishing, Inc., 10 (collectively with Williams, the “Williams Parties”), Interscope Records, UMG 11 Recordings, Inc., Universal Music Distribution, a division of Universal Music Group 12 Distribution Corp., and Star Trak Entertainment, LLC. (the “Interscope Parties”) (the 13 “Thicke Parties,” the “Williams Parties,” and the “Interscope Parties” collectively, 14 “Plaintiffs/Counter-Defendants”). 15 The Copyright Act provides that in an action for copyright infringement, the 16 Court may award “a reasonable attorneys’ fee to the prevailing party as part of the 17 costs.” 17 U.S.C. § 505. The same standards apply when awarding fees to a 18 successful plaintiff or defendant, “since a successful defense furthers the purpose of 19 the Copyright Act just as much as a successful infringement suit does.” Inhale, Inc. v. 20 Starbuzz Tobacco, Inc., 755 F.3d 1038, 1043 (9th Cir. 2014). “The most important 21 factor in determining whether to award fees under the Copyright Act is whether an 22 award will further the purposes of the Act.” Mattel, Inc. v. MGM Entm’t, Inc., 705 23 F.3d 1108, 1111 (9th Cir. 2013). As the United States Supreme Court has explained 24 in its seminal opinion on the purpose of awarding fees to a successful litigant: 25 Because copyright law ultimately serves the purposes of enriching the 26 general public through access to creative works, it is important that the 27 boundaries of copyright law be demarcated as clearly as possible. 28 Fogarty v. Fantasy, 510 U.S. 517, 527 (1994) (emphasis added). 1 Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 7 of 31 Page ID #:14066 1 Here, Nona and Frankie Gaye are both the prevailing party as defendant and 2 plaintiff. The Thicke Parties aggressively and strategically initiated this action. They 3 asserted that they did not copy “Got To,” and claimed that any similarities between 4 “Blurred” and “Got To” was only the result of similarities in genre or theme— 5 “scènes à faire”—and asked this Court to declare accordingly. Nona and Frankie 6 Gaye fought back, won, and, in so doing, helped to “demarcate[]” the “boundaries of 7 copyright law.” Id. 510 U.S. at 527. An award of fees to Nona and Frankie Gaye will, 8 therefore, further the purposes of the Copyright Act. 9 An award of fees will encourage similar parties, facing an opponent with vastly 10 greater resources, to nevertheless fight to protect their copyrights. Fantasy v Fogerty, 11 94 F.3d 553, 558 (9th Cir. 1996) (noting that both defendants and plaintiffs often 12 times own copyrights and the protection of the prevailing party’s copyright furthers 13 the purposes of the Copyright Act and justifies an award of fees, regardless of 14 whether the losing party is “blameworthy.”). In this regard, courts in this District 15 have also found it relevant that the losing party was “sophisticated,” asked for fees 16 and costs themselves, and should have therefore understood the “potential 17 consequences” of ultimately unsuccessful copyright litigation. DuckHole Inc. v. NBC 18 Universal Media, LLC, No. CV 12–10077–BRO, 2013 WL 5797204, at *11 n.4, *13 19 (C.D. Cal. Oct. 25, 2013). As discussed fully below, Plaintiffs/Counter-Defendants 20 are such parties, and all of the relevant considerations favor the awarding of fees. 21 The fees Nona and Frankie Gaye seek are entirely reasonable, both in terms of 22 the number of hours worked and the hourly rates sought. The non-taxable costs 23 sought were all necessary. As this Court is aware, the trial in this case included 24 significant discovery, extensive expert musicology reports, summary judgment 25 motions, numerous pre-trial filings and hearings, and testimony from fourteen 26 witnesses with the critical testimony coming from Nona and Frankie Gaye’s liability 27 expert witnesses, Judith Finell and Dr. Ingrid Monson, Plaintiffs/Counter- 28 Defendants’ expert witness Sandra Wilbur, the other experts from both sides, and the 2 Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 8 of 31 Page ID #:14067 1 parties themselves. The fees and non-taxable costs sought are fully supported, in 2 accompanying Declarations and Exhibits in the manner specified by this Court. As 3 discussed at trial and in their respective Declarations, King & Ballow retained all of 4 the experts in this action, have paid them directly, and are responsible to them for 5 such payment. (Busch Decl. at ¶ 42). 6 A. Case History 7 After hearing “Blurred,” Jan Gaye reached out to the Thicke Parties to discuss 8 her belief, and Nona and Frankie Gaye’s belief, that the Thicke Parties copied “Got 9 To.” (Dkt. No. 349 at 12:17-14:1). The Thicke Parties were not interested in working 10 out a commercially reasonable royalty bearing license consistent with customary 11 music industry practice, or giving credit to Marvin Gaye. (Id.). Instead, on August 15, 12 2013, the Thicke Parties filed a Complaint against Nona and Frankie Gaye (as well as 13 Marvin Gaye III) (collectively, the “Gaye Parties”) seeking a declaration that 14 “Blurred” did not copy or otherwise infringe “Got To,” and also requesting an award 15 of attorneys’ fees. (Dkt. No.1). On October 30, 2013, the Gaye Parties responded and 16 filed a counterclaim and third party complaint alleging that “Blurred” did copy and 17 infringe “Got To” (Dkt. No. 14). The Gaye Parties sought damages, declaratory relief 18 and future ongoing relief of injunction or an appropriate royalty, as well as attorneys’ 19 fees and costs. 20 On March 10, 2015, after a seven-day trial, an eight-member jury unanimously 21 found that “Blurred” copied and infringed “Got To.” (Dkt. No. 320 at 2-3). The jury 22 also found Thicke, Williams, and More Water From Nazareth Publishing, Inc. 23 directly liable for the infringement and awarded the Gaye Parties $7,378,647.19 in 24 profits and actual damages. (Id.). 25 On May 1, 2015, Plaintiffs/Counter-Defendants filed a Motion for Judgment as 26 a Matter of Law, Declaratory Relief, a New Trial, or Remitter. (Dkt. Nos. 378, 385). 27 The Gaye Parties filed a motion for judgment on their claim for declaratory relief, 28 that Clifford Harris, Jr. (“Harris”) and the Interscope Parties, as well as the Thicke 3 Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 9 of 31 Page ID #:14068 1 Parties, are liable for infringement of “Got To.” The Gaye Parties also filed a Motion 2 for Injunctive Relief, or in the Alternative, for Ongoing Royalties, and a Motion for 3 Prejudgment Interest. The Court entered an Order on July 14, 2015, denying 4 Plaintiffs/Counter-Defendants’ Motion for Judgment as a Matter of Law, declaratory 5 relief, or a new trial. The Court granted, in part, the request for remitter. As to the 6 Gaye Parties’ Motions, the Court found that the Gaye Parties are entitled to judgment 7 as a matter of law against Harris and the Interscope Parties. (Dkt. No. 423 at 45). The 8 Court also found that the Gaye Parties were entitled to a 50% ongoing royalty for all 9 uses of “Blurred.” (Id. at 53). On December 15, 2015, the Court entered judgment in 10 this action confirming its prior rulings. (Dkt. No. 450). 11 II. ARGUMENT 12 A. The Gaye Parties are the Prevailing Party 13 Generally, “[u]nder the Copyright Act, the ‘prevailing party is one who 14 succeeds on a significant issue in the litigation that achieves some of the benefits the 15 party sought in bringing the suit.’” Florentine Art Studio, Inc. v. Vedet K. Corp., 891 16 F. Supp. 532, 541 (C.D. Cal. 1995) (citation omitted). “[A] prevailing party is one 17 who has been awarded some relief by the court.” Cadking v. Loose, 569 F.3d 1142, 18 1148 (9th Cir. 2009) (citation omitted). “The key inquiry is whether some court 19 action has created a ‘material alteration of the legal relationship of the parties.’” Id. 20 (citation omitted); see Brighton Collectibles, Inc. v. Coldwater Creek, Inc., No. 06- 21 CV-01848-H (POR), 2009 WL 160235, at *3 (S.D. Cal. Jan. 20, 2009) (holding that 22 Brighton was the prevailing party because it succeeded on its claim for infringement; 23 “the dismissal of one of its copyright claims does not prevent it from being deemed 24 the overall prevailing party under the Copyright Act.”). 25 While the Gaye Parties also asserted that the Robin Thicke song “Love After 26 War” (“LAW”) copied the Marvin Gaye song “After The Dance” (“ATD”), that 27 claim played a minor role in this litigation. It was not raised by the Thicke Parties in 28 their Declaratory Relief Action, and was neither the focus of much discovery nor 4 Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 10 of 31 Page ID #:14069 1 attention at trial.1 Indeed, as discussed in the attached Declaration of Richard S. 2 Busch, the ATD claim was barely addressed in depositions, document requests, or 3 pre-trial activity, and references to it made up between 2-3% of lines of deposition 4 testimony, and 6% of the trial. (Busch Decl. at ¶ 18; Johnson Decl. at ¶ 4; Davis Decl. 5 at ¶ 6). The amount in controversy with respect to this claim was also minute when 6 compared to the “Blurred” claim. (Busch Decl. at ¶ 19). In his Declaration, attached 7 hereto, lead counsel Richard Busch walks through, in detail, specific tasks involved 8 in this litigation, in order to show, by task, whether ATD was relevant to it. (Busch 9 Decl. at ¶¶ 18-31, 33-39). Mr. Busch’s Declaration highlights the insignificance all 10 parties placed on the ATD claim in this litigation. 11 The Gaye Parties “clearly succeeded in by far the most significant part of this 12 litigation, and achieved substantially all the benefits they hoped to achieve” in 13 bringing their claim. Florentine, 891 F. Supp. at 541. The jury found that “Blurred” 14 copied and infringed upon “Got To” and the court awarded judgment, including 15 declaratory relief, to the Gaye Parties, thereby “materially altering the legal 16 relationship between the parties.” The Gaye Parties are therefore the prevailing 17 party.2 B. 18 19 The Gaye Parties are Entitled to an Award of Attorney Fees 1. The Fogerty “Considerations” 20 The touchstone for consideration of attorney fees under Section 505 of the 21 Copyright Act is “further[ance] of the policies of the Copyright Act.” Fogerty v 22 23 24 25 26 27 28 1 Indeed, the Court noted as much prior to trial by pointing out that neither party spent much time on ATD in either their papers or argument. (Dkt. No. 229 at 31:9-19). At trial, Mr. King noted to the jury that he needed to address the ATD/LAW claim even though nobody was talking about it. (Dkt. No. 339 at 121). 2 Nonetheless, anticipating that the Court may find it appropriate to only award Nona and Frankie Gaye fees and non-taxable costs for work on the “Blurred” claim, as described below, Nona and Frankie Gaye are only seeking fees and costs for “Blurred” related work and expenses. As explained in the Declaration of Richard Busch, fees and costs concerning ATD were removed, and are not being sought, and overall fees are being reduced on a percentage basis. (Busch Decl. at ¶ 17). 5 Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 11 of 31 Page ID #:14070 1 Fantasy, 510 U.S. at 527 [“Fogerty II”]. After the Supreme Court decision in Fogerty 2 II was remanded, a fees award of $1.3 million was entered and the issue was taken up 3 on appeal by the Ninth Circuit in Fantasy v. Fogerty, 94 F.3d 553 (9th Cir. 1996). 4 That court noted and quoted from the Supreme Court’s Fogerty II opinion regarding 5 furtherance of copyright purposes as follows: 6 Considerations discussed by the Court include the Copyright Act’s 7 primary objective ‘to encourage the production of original literary, 8 artistic, and musical expression for the good of the public’; the fact that 9 defendants as well as plaintiffs may hold copyrights, and ‘run the gamut 10 from corporate behemoths to starving artists’; the need to encourage 11 ‘defendants who seek to advance a variety of meritorious copyright 12 defenses to litigate them to the same extent that plaintiffs are encouraged 13 to litigate meritorious claims of infringement’; and the fact that a 14 ‘successful defense of a copyright infringement action may further the 15 policies of the Copyright Act every bit as much as a successful 16 prosecution of an infringement claim by the holder of the copyright 17 (collectively “the Considerations”). Id. at 557-58 (internal citations omitted). 18 The context of Fantasy v. Fogerty informs the proper analysis. Singer John 19 Fogerty, then a member of “Creedence Clearwater Revival,” wrote and recorded the 20 song “Run Through The Jungle.” Fogerty II, 510 U.S. at 519. The publishing 21 copyright in that song was owned by Fantasy Records, the record label for the 22 Creedence group. Id. Some fifteen years later, Fogerty wrote and published a new 23 song, “The Old Man Down the Road.” Id. Based on similarities in the music in the 24 two songs, Fantasy sued for copyright infringement. Id. at 520. The jury returned a 25 verdict for Fogerty and he moved for an award of fees. Id. On remand, the District 26 Court analyzed the “Fogerty factors,” discussed below, found that the purposes of the 27 Copyright Act would be furthered by a grant of fees, and awarded $1.3 million in fees 28 to Fogerty. Fogerty, 94 F.3d at 555. Fantasy argued on appeal that fees should not 6 Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 12 of 31 Page ID #:14071 1 and could not be awarded against it because its litigation position was blameless, in 2 good faith, and not frivolous. Id. The Ninth Circuit rejected that argument, held that 3 an award of attorney fees “is not cabined by a requirement of culpability on the part 4 of the losing party,” and that the District Court did not abuse its discretion in 5 awarding Fogerty attorneys’ fees. Id. 6 The Considerations all support an award of Fees for Nona and Frankie Gaye: 7 (1) they made a brave decision to fight when sued and to protect the copyright to one 8 of the most iconic songs of all time, despite being threatened themselves with an 9 award of fees, which would have been economically disastrous to them (Jan Gaye 10 Decl. at ¶ 7); (2) an award of fees will reward this decision to fight and endure the 11 ensuing litigation, which will help promote and incentivize the creation of original 12 expression; (3) an award of fees will encourage others to protect their copyrights, 13 either in defense or as a plaintiff, while a denial of fees will discourage doing so; 14 (4) an award of fees will also encourage others to work disputes out prior to litigation 15 out of fear of being responsible for fees; (5) an award of fees will further the purpose 16 of the copyright act, which is, among other things, to demarcate the lines of copyright 17 infringement; and (6) the Plaintiffs/Counter-Defendants are all “sophisticated” 18 industry giants who aggressively started this litigation, asked for fees themselves, 19 were aware of the potential consequences should they lose, and should therefore not 20 be able to legitimately complain about the imposition of fees. See DuckHole Inc., 21 2013 WL 5797204, at *11 n.4, *13. 22 In addition to the Considerations, in Fogarty II, the Court identified five 23 “nonexclusive” factors that can guide a district court’s discretion in deciding whether 24 to award attorneys’ fees. These factors are: (1) the degree of success obtained; 25 (2) objective unreasonableness of the parties’ factual and legal arguments; 26 (3) motivation; (4) the need, in particular circumstances, to advance considerations of 27 compensation and deterrence; and (5) frivolousness. Fogerty II, 510 U.S. at 534 n.19. 28 This does not represent an exhaustive list and all factors need not be met to attain an 7 Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 13 of 31 Page ID #:14072 1 award of fees. Fogerty, 94 F.3d at 555. As discussed below, these factors also 2 strongly weigh in favor of an award for Nona and Frankie Gaye. 3 2. The Degree of Success Obtained on the Claim 4 “In deciding whether to award fees under the Copyright Act, the district court 5 should evaluate the degree of success obtained on the claim . . .” Perfect 10, Inc. v. 6 Giganews, Inc., No. CV 11-07098-AB SHX, 2015 WL 1746484, at *2 (C.D. Cal. 7 Mar. 24, 2015). “This factor weighs in favor of a party who prevailed on the merits, 8 rather than on a technical defense.” DuckHole Inc, 2013 WL 5797204, at *2; Fogerty, 9 94 F.3d at 559; Cf. Perlan Therapeutics, Inc. v. Nexbio, Inc., No. 05–cv–1855 10 (BEN)(BLM), 2007 WL 935619, at *2 (S.D. Cal. Mar. 19, 2007) (denying defendant 11 attorney fees in copyright case where “degree of success” was small because “while 12 Defendants succeeded in obtaining dismissal of the copyright claims, the ruling did 13 not reach the merits and Plaintiffs were able to reassert their claims in a new 14 proceeding”); Minden Pictures, Inc. v. John Wiley & Sons, Inc., No. C-12-4601 15 EMC, 2014 WL 1724478, at *6 (N.D. Cal. Apr. 29, 2014) (denying attorneys’ fees to 16 defendant because “degree of success is mitigated by the fact that no substantive 17 ruling regarding underlying question of infringement was made” and defendant 18 prevailed based on a lack of standing); Brighton Collectibles, Inc. v. Pedre Watch 19 Co., No. 11 CV-00637-AJB-WVG, 2014 WL 29008, at *4 (S.D. Cal. Jan. 2, 2014) 20 (granting fees to prevailing copyright owner holding that “Brighton prevailed on the 21 merits, not on some technical matter.”). 22 Here, as discussed fully above, the jury found specifically that the Thicke 23 Parties copied “Got To” and that “Blurred” was infringing. The jury also rejected 24 Plaintiffs/Counter-Defendants’ arguments for a miniscule apportionment if copying 25 and infringement was found and instead found that the copying of “Got To” was 26 extensive and entitled the Gaye Family to 50% of the “Blurred” publishing revenue. 27 This Court recognized this to be the jury’s finding by awarding an ongoing 50% 28 royalty. (Dkt. No. 423 at 53). The Gaye Parties thus won, on the merits, as both 8 Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 14 of 31 Page ID #:14073 1 defendant and counterclaim plaintiff. This factor weighs decisively in favor of Nona 2 and Frankie Gaye. 3 3. Factual and Legal Objective Unreasonableness 4 “[A] court must consider the objective reasonableness of a party’s claims, ‘both 5 in the factual and in the legal components of the case.’” DuckHole Inc., 2013 WL 6 5797204, at *2 (citation omitted). This factor also clearly supports Nona and Frankie 7 Gaye. 8 As this Court is aware, prior to litigation, Mr. Thicke stated in numerous 9 interviews that he instructed Mr. Williams to create a song just like “Got To,” and get 10 a groove like “Got To” going (see Dkt. No. 122 at Ex. 3, Tracks 1-7), and boasted 11 that “Blurred” was “Got To Part II.” (Dkt. No. 112 at Ex. 3, Track 1). In his 12 deposition testimony, however, he stated that all of those admissions were false and 13 were the result of being drunk on Vodka, high on Vicodin, and/or not being a truthful 14 person, and/or saying whatever he needs to say to sell records. (Dkt. No. 349 at 103; 15 Dkt. No. 122 at 79; Dkt. No. 196-9 at 9, 33). He further testified at his deposition that 16 he actually had no conversations with Mr. Williams about the creation of “Blurred” 17 or what to try to evoke or create in “Blurred.” (Dkt. No. 196-9 at 12-13, 39-40). Mr. 18 Thicke testified he was not even in the studio when Williams initially created 19 “Blurred.” (Dkt. No. 196-9 at 34). This testimony was completely at odds with the 20 many statements he made to the contrary. 21 For his part, Mr. Williams admitted outside of this litigation that he tried to 22 take and use the feeling that “Got To” gave him while creating “Blurred” and 23 pictured himself as Marvin Gaye in the studio while creating “Blurred.” (Dkt. No. 24 338 at 136-37; Dkt. No. 122 at 52-54; Dkt. No. 388-1). Yet, in his sworn deposition, 25 he inconsistently said neither “Got To” nor Marvin Gaye ever crossed his mind while 26 creating “Blurred.” (Dkt. No. 338 at 137-38). He also echoed Mr. Thicke’s testimony 27 that he and Mr. Thicke never discussed what to try to create or evoke in “Blurred,” 28 and testified that he had no conversations with Mr. Thicke on that subject matter at 9 Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 15 of 31 Page ID #:14074 1 all. Id. In his deposition, as seen in the video the Court and the jury viewed, Mr. 2 Williams was alternatively belligerent and evasive, refusing repeatedly to respond to 3 clearly relevant questions about the “Blurred” and “Got To” compositions. (Dkt. No. 4 395). He also repeatedly described as “ludicrous” the written interrogatories he was 5 asked to answer. (Dkt. No. 122 at 93-97; Dkt. No. 395). 6 If that were all, it would still be more than enough to show that the factual 7 allegations of Mr. Thicke and Williams in this litigation utterly lack credibility in 8 light of their many irreconcilable statements to the contrary, and were therefore 9 objectively unreasonable. But there is more, and it involves one of the so-called 10 “ludicrous” interrogatories. 11 On March 28, 2014, Mr. Thicke submitted his response to Nona and Frankie 12 Gaye’s First Set of Interrogatories. (Dkt. No. 196-13 at 65). He signed a sworn 13 verification saying that each response was true under the penalty of perjury. He was 14 also presented with his verification at his deposition and said he signed it only after 15 verifying the answers were true and correct. (Dkt. No. 122 at 71). In response to 16 Interrogatory Number 16, Mr. Thicke answered as follows: “Robin Thicke told 17 Pharrell Williams that Thicke would love to create a song that evoked the musical era 18 of ‘Got to Give it Up.’” (Dkt. No. 196-13 at 67). 19 This sworn answer directly contradicts Mr. Thicke and Williams’ sworn 20 deposition and trial testimony in this case that they did not speak at all about the 21 creation of “Blurred,” much less speak about what to create or evoke. (Dkt. No. 122 22 at 103, 109, 111-113). There is simply no way to reconcile their sworn deposition and 23 trial testimony with Mr. Thicke’s sworn interrogatory answer, and no way to 24 reconcile their deposition and trial testimony with their numerous statements outside 25 of this case. These fluid and alternating stories showed a complete disregard and 26 27 28 10 Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 16 of 31 Page ID #:14075 1 disrespect for the judicial process.3 To say the least, their conduct was objectively 2 unreasonable.4 3 This factor thus also heavily weighs in favor of Nona and Frankie Gaye, as 4 courts have had no problem finding when faced with similar behavior. IO Grp., Inc. 5 v. Jordan, No. C 09-0884 MEJ, 2010 WL 2231793, at *2 (N.D. Cal. June 1, 2010) 6 (granting fees to copyright plaintiff because of the “inherent contradictions in 7 Defendant’s factual statements”); Warren Pub. Co. v. Spurlock, No. CIV.A. 08-3399, 8 2010 WL 760311, at *8 (E.D. Pa. Mar. 3, 2010) (granting partial attorneys’ fees to 9 prevailing defendant where plaintiff had taken “objectively unreasonable” position by 10 being untruthful in its deposition: “Warren’s testimony . . . is belied by the record, 11 and therefore, objectively unreasonable in fact.”). 12 13 Finally, the legal components of their case, which relied upon these objectively unreasonable facts, were also therefore objectively unreasonable.5 14 4. The Parties’ Respective Motivations 15 Under this factor, the court determines whether the party demonstrated a bad 16 faith motive in litigating the case. Fogerty, 94 F.3d at 558. However, a bad faith 17 motive is not necessary in order to award fees. Id. Courts in this District have noted, 18 19 20 21 22 23 24 25 26 27 28 3 Indeed, at his deposition, Mr. Thicke testified flat out that he “[did not] give a f***” about this case. (Dkt. No. 122 at 65). 4 In Fantasy, the Ninth Circuit affirmed the fee award even though the district court had concluded that the position of Fantasy was not objectively unreasonable. Fantasy, Inc. v. Fogerty, 94 F.3d 553, 558-59 (9th Cir. 1996). 5 For example, Plaintiffs/Counter-Defendants raised the affirmative defense of “Independent Creation,” and included that as part of their requested jury instructions, and proposed verdict form. (Dkt. No. 1; Dkt. No. 219-1 at 4; Dkt. No. 223 at 6, 2122; 223-2 at 7, 20, 49). “Independent Creation” is a legal doctrine that provides that a defendant may be excused for the substantial similarity in two works if it created the allegedly infringing work without any knowledge of the other work and without it in mind either consciously or subconsciously. See Bernal v. Paradigm Talent & Literary Agency, 788 F. Supp. 2d 1043, 1053 n.5 (C.D. Cal. 2010). The raising of this legal defense was objectively unreasonable in light of Mr. Williams’ admissions that he pictured himself as Marvin Gaye while creating “Blurred,” and tried to take the feeling that “Got To” gave him and use that to create “Blurred,” as well as Thicke’s sworn interrogatory response and numerous admissions about asking Williams to create a song like “Got To,” all of which are fully discussed above. 11 Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 17 of 31 Page ID #:14076 1 under this prong, it is relevant whether a party is a sophisticated party who 2 themselves sought fees. DuckHole Inc., 2013 WL 5797204, at *11 n.4. 3 The Gaye Parties’ motivation in asserting its copyright claim is clear. They 4 were sued by the Thicke Parties. They could either give up, as the Thicke Parties 5 clearly hoped they would, or they could fight back. They believed, and were 6 vindicated by the jury in their belief, that “Blurred” unlawfully copied critical and 7 creative musical content from “Got To” without proper compensation or credit to 8 their former husband and father. They therefore responded to the lawsuit filed for 9 declaratory relief with their own affirmative claim for copyright infringement. 10 On the other hand, objectively, it is obvious that the Thicke Parties brought this 11 action with the hope that it would be too expensive for the Gaye Parties to defend, 12 and that they would be bullied into going away. Plaintiffs/Counter-Defendants have 13 enormous resources. Nona and Frankie Gaye’s resources pale in comparison. (Jan 14 Gaye Decl. at ¶ 7). There is no other reason for the Thicke Parties to have launched 15 this litigation, even if they thought the Gaye Parties might eventually bring an action 16 themselves. The Thicke Parties could have discussed the matter with the Gaye 17 Family, or could have simply waited to see if the Gaye Family decided to pursue it 18 and then defended the action on the merits. They chose to do neither. Awarding fees 19 to Nona and Frankie Gaye would encourage smaller, and outgunned parties to fight to 20 protect their copyrights against much larger opponents with vastly greater 21 resources—the “behemoths” in the Supreme Court’s words—and furthers the 22 purposes of the Copyright Act. See, e.g., Fogerty v. Fantasy, Inc., 510 U.S. 517, 524 23 (1994) (“The primary objective of the Copyright Act is to encourage the production 24 of original literary, artistic, and musical expression for the good of the public.”); 25 Quinto v. Legal Times of Wash., Inc., 511 F. Supp. 579, 581 (D.D.C. 1981) (“An 26 award of attorney’s fees helps to ensure that all litigants have equal access to the 27 courts to vindicate their statutory rights.”) (emphasis added); see also 5-14 Nimmer 28 on Copyright § 14.10 (2015). 12 Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 18 of 31 Page ID #:14077 1 The Thicke parties also requested their own fees in their declaratory judgment 2 claim, and therefore hoped that the prospect of facing a fee award would be too much 3 for the Gaye Family to endure. They used that threat explicitly. (Jan Gaye Decl. at ¶ 4 7). Now, having lost on that bet, they should not be heard to complain about an award 5 of fees. DuckHole Inc., 2013 WL 5797204, at *11 n.4. This factor too weighs in favor 6 of Nona and Frankie Gaye. 7 5. 8 The Need in Particular Circumstances to Advance Considerations of Compensation and Deterrence 9 “[A] court must remain ‘faithful to the purposes of the Copyright Act’ which 10 include not only ‘[securing] a fair return for an ‘author’s creative labor,’’ but also the 11 ‘[stimulation of] artistic creativity for the general public good.’” Broadcast Music, 12 Inc. v. McDade & Sons, Inc., 928 F. Supp. 2d 1120, 1136 (D. Ariz. 2013) (citation 13 omitted). 14 This Fogerty Factor mirrors similar language in the Fogerty Considerations, 15 discussed supra. For the same reasons identified above, this factor strongly favors 16 Nona and Frankie Gaye. Furthermore, courts have held that a relevant fact under this 17 prong is whether factual allegations were consistent or shifted. See, e.g, Spurlock, 18 2010 WL 760311, at *14 (holding that “misrepresentations” constituted “behavior 19 that warrant[ed] deterrence.”). Here, again, this fact strongly favors Nona and Frankie 20 Gaye. The Thicke Parties were not only inconsistent in what they said outside of this 21 case versus within the case, but Mr. Thicke gave sworn interrogatory responses that 22 were directly at odds with the deposition testimony of himself and Mr. Williams. 23 Their constantly changing stories drove up the cost of this litigation, and showed a 24 complete disrespect for the judicial process. 25 6. Frivolousness 26 The Supreme Court has found that a finding of frivolousness is not required in 27 order to award fees. Fogarty II, 510 U.S. at 533 n.18; Fogerty, 94 F.3d at 569. Courts 28 therefore no longer consider this factor. DuckHole Inc., 2013 WL 5797204, at *5. 13 Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 19 of 31 Page ID #:14078 1 Nonetheless, for all of the reasons identified above, including but not limited to their 2 ever shifting stories, and the finding of the jury, the Court may also find that the 3 positions taken by the Plaintiffs/Counter-Defendants were frivolous. 4 C. 5 “The reasonableness of an attorney’s request for fees is determined by the 6 ‘lodestar approach’ set forth in Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).” 7 Bernal v. Paradigm Talent and Literary Agency, No. CV 07–06445 SVW, 2010 WL 8 6397561, at *4 (C.D. Cal. 2010). The amount of an attorneys’ fees award is 9 determined by (1) calculating the lodestar figure and (2) determining whether that 10 11 The Amount of Attorneys’ Fees Claimed is Reasonable lodestar figure should be adjusted. 1. Calculating the Lodestar Figure 12 In setting a fee, the Court “must first determine the presumptive lodestar figure 13 by multiplying the number of hours reasonably expended on the litigation by the 14 reasonable hourly rate.” Intel Corp. v. Terabyte Int’l, Inc., 6 F.3d 614, 622 (9th Cir. 15 1993); Love v. Mail on Sunday, No. CV05-7798 ABC (PJWX), 2007 WL 2709975, at 16 *2 (C.D. Cal. Sept. 7, 2007). “The lodestar amount presumably reflects the novelty 17 and complexity of the issues, the special skill and experience of counsel, the quality 18 of representation, and the results obtained from the litigation.” Id. To establish this 19 “‘presumptively reasonable’ lodestar figure,” the party seeking fees must “provide 20 (1) contemporaneous billing records, (2) counsel’s hourly rate, and (3) evidence that 21 this rate is reasonable for an attorney of like skill and experience.” The relevant 22 reasonable hourly rate is the rate in the community where the action is pending. 23 Discovery Commc’n, Inc., v. Animal Planet, Inc., 172 F. Supp. 2d 1282, 1292 (C.D. 24 Cal. 2001); Perfect 10, Inc. v. Giganews, Inc., 2015 WL 1746484, at *15 (C.D. Cal. 25 Mar. 24, 2015). 26 27 The amount of fees and expenses Nona and Frankie Gaye are seeking in this motion is set forth below: 28 14 Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 20 of 31 Page ID #:14079 1 Law Firm Requested Fees Costs Total 2 King & Ballow6 $2,079,906.50 $753,032.19 $2,832,938.69 3 Levinsohn Associates, P.C.7 $405,949.37 $12,516.05 $418,465.42 4 Arnold & Porter8 $167,235.39 $7,712.28 $174,947.67 5 Wargo French9 $7,306.00 $3,241.14 $10,547.14 6 Gordon, Gordon & Schnapp10 $3,508.34 $431.05 $3,939.39 7 Total $776,932.71 $3,440,838.31 8 The supporting Declarations with exhibits establish that these fees and expenses are 9 reasonable and necessary. Furthermore, Nona and Frankie Gaye have retained an 10 expert witness, Richard Pearl, with respect to this fee and cost application. Mr. Pearl 11 has submitted a detailed Declaration that is being submitted herewith. As discussed in 12 that Declaration, based upon his knowledge and experience, Mr. Pearl has concluded 13 that both the hourly rates, and the number of hours worked, are reasonable. (Pearl 14 Decl. at ¶¶ 9-13, 19-20). $2,663,905.60 15 As to “the number of hours reasonably expended on the litigation,” Intel Corp., 16 6 F.3d at 622, since August 2013, King & Ballow counsel expended 6,033.30 hours 17 on the “Blurred” claim between the filing of the Complaint on August 15, 2013, and 18 entry of the Judgment on December 2, 2015. (Dkt. No. 450). 19 There were also numerous post-trial and post-judgment Motions filed on behalf 20 21 22 23 24 25 26 27 28 6 See Busch Decl. at ¶ 44, Exs A, B, C, and G. King & Ballow advanced all of the costs incurred in this litigation. This amount reflects the percentage discount of 10% of associate time to avoid any claim of duplication, and 5% for “ATD” even though, as mentioned, that time was already segregated and eliminated. The fees based upon the hours worked would have been $2,318,710. (Busch Decl. at ¶¶ 17, 19). 7 See Declaration of Mark Levinsohn, at ¶ 15, Exs. A, B, and C. This amount reflects the percentage discount of 10% of attorney time, and 5% for “ATD” even though, as mentioned, that time was already segregated and eliminated. The fees based upon the hours worked would have been $477,587.50. (Levinsohn Decl. at ¶ 17). 8 See Declaration of Daniel B. Asimow, at ¶ 3, Exhibits A, B, and C. 9 See Declaration of Mark Block, at ¶ 10, Exhibits 1, 2, and 3. 10 See Declaration of James Thayer, at ¶ 7, Exhibits A, B, and C. 15 Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 21 of 31 Page ID #:14080 1 of each party. Each of these Motions and responses to Motions required additional 2 time on behalf of Nona and Frankie Gaye’s attorneys. The hours were reasonable and 3 necessary. Also, the firm of Arnold & Porter was retained to assist in the post-trial 4 motion period and that firm has expended 215.2 hours on such motions. Arnold & 5 Porter was retained after Plaintiffs/Counter-Defendants announced they would 6 vigorously challenge the verdict, and retained Sidley & Austin, and Quinn Emmanuel 7 in that regard, two national/international law firms that between them have more than 8 2,400 lawyers. 9 Attorney Mark Levinsohn was pivotal in assisting Nona and Frankie Gaye 10 throughout this litigation and at trial. Mr. Levinsohn was counsel to Nona and 11 Frankie Gaye prior to the filing of this litigation and referred the matter to Richard 12 Busch and his law firm as litigation counsel, while Mr. Levinsohn continued to work 13 extensively with Mr. Busch and his law firm on the matter as a consultant and 14 provided litigation support during the entirety of this action. Rather than recruit 15 another experienced partner at King & Ballow to work with him on a daily basis with 16 respect to strategy, decision making, and other work, Mr. Busch used Mr. 17 Levinsohn’s experience in that regard as a consultant and as litigation support to 18 assist. (Busch Decl. at ¶ 4).11 He was involved for the duration of the case, and 19 relocated to Los Angeles in early February, 2015 to provide consultation and 20 assistance with all pre-trial matters. (Busch Decl. ¶¶ 3-4, 31). He was an invaluable 21 asset to Nona and Frankie Gaye and assisted King & Ballow counsel in the review of 22 and revision of documents, deposition and examination outlines, case strategy, client 23 communication, demonstrative exhibits, and the decision making process throughout 24 the litigation. Mr. Levinsohn’s hourly rate of $650.00 is well within the prevailing 25 26 27 28 11 Mr. Busch also asked his partner in King & Ballow’s San Diego office, Paul Duvall, to assist on specific tasks. (Busch Decl. at ¶ 5). Nona and Frankie Gaye are only seeking $400 per hour as Mr. Duvall’s rate, which is dramatically below the rate typically charged for a Partner with more than 30 years of experience. (Busch Decl. at ¶ 8; Pearl Decl. at ¶¶ 10-13). 16 Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 22 of 31 Page ID #:14081 1 rate in the community for similar services. Mr. Levinsohn expended a total of 734.75 2 hours from the inception of this action through the filing of this Motion. (Levinsohn 3 Decl. at ¶ 7). Mr. Levinsohn’s legal services are recoverable regardless of whether he 4 made an appearance in this case. Winterrowd v. Am. Gen. Annuity Ins. Co., 556 F.3d 5 815, 824 (9th Cir. 2009). Attorneys who have not made an appearance before a court, 6 or even who are not licensed within the state, may still act as a consultant and those 7 fees are recoverable. Id. Mr. Levinsohn is a highly qualified attorney in good standing 8 with the New York bar, has never faced disciplinary action, and surely would have 9 been admitted pro hac vice had he applied. Id. 10 Additionally, since November 30, 2015, King & Ballow and Mr. Levinsohn 11 have been working diligently at completing the Motion for Attorneys’ Fees and the 12 supporting Memorandum of Points and Authorities and Declaration and the Gaye 13 Parties’ Notice of Application to Tax Costs and proposed Bill of Costs. The total 14 amounts will be submitted and updated with Nona and Frankie Gaye’s reply brief, at 15 which time the briefing will be completed. 16 Nona and Frankie Gaye’s lead counsel Richard S. Busch is applying an hourly 17 rate of $600 per hour for his time in this action, which is actually below “those 18 prevailing in the community for similar services.” Intel Corp., 6 F.3d at 622. Nona 19 and Frankie Gaye’s counsel, Richard S. Busch, is a partner in the law firm of King & 20 Ballow, and has been practicing law for more than 24 years. In the last 10 plus years, 21 he has served as lead counsel in several high profile entertainment and copyright 22 infringement trials. (Busch Decl. at ¶ 7). In this District, practitioners—like Nona and 23 Frankie Gaye’s counsel—with comparable experience in copyright litigation 24 routinely charge more than $700 an hour, so Mr. Busch’s rate of $600 per hour is 25 more than reasonable.12 (Pearl Decl. at ¶¶ 10-12). King & Ballow is also applying a 26 27 28 12 As reflected in his Declaration, Mr. Busch’s office is in Nashville, Tennessee. During the relevant time period, Mr. Busch charged his clients at an hourly rate of between $375 and $500 per hour depending upon the client and the work involved. 17 Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 23 of 31 Page ID #:14082 1 rate of between $300 and $400 for its other attorneys who worked on this case, which 2 is also well below comparable rates in the Los Angeles community. (Busch Decl. at ¶ 3 12; Pearl Decl. at ¶¶10-12). 4 In regard to the attorneys’ fees of King & Ballow, multiplying the 6,033.30 5 hours reasonably spent in defending Plaintiffs/Counter-Defendants’ claim, and 6 prosecuting the counterclaim, through the entry of judgment, by the foregoing hourly 7 rates, results in $2,318,710.00 as the “‘presumptively reasonable’ lodestar figure.” 8 Intel Corp., 6 F.3d at 622. After the 10% and 5% reductions, this total comes to 9 $2,079,906.50. In regard to attorneys’ fees of Levinsohn Associates, multiplying the 10 734.75 hours reasonably spent in defending Plaintiffs/Counter-Defendants’ claim 11 through the filing of this Motion, by his $650 hourly rate results in $477,587.50 as the 12 “‘presumptively reasonable’ lodestar figure.” Id. After the 10% and 5% reductions, 13 this total comes to $405,949.37. As to the Arnold & Porter fees, multiplying the 14 215.20 hours related to post-trial motions by their hourly rates result in $167,235.39 15 as the “presumptively reasonable lodestar figure. Id. 16 2. Kerr Factors Confirm the Fee is Reasonable 17 “[T]he district court may adjust the ‘presumptively reasonable’ lodestar figure 18 based upon the factors listed in Kerr v. Screen Actors Guild, Inc., 526 F. 2d 67, 69-70 19 (9th Cir. 1975), cert. denied, 425 U.S. 951 (1976), that have not been subsumed in the 20 lodestar calculation.” Intel Corp., 6 F.3d at 622. The Kerr factors include “[t]he 21 amount involved and the results obtained” and “the customary fee.” Intel Corp., 6 22 F.3d at 622. “Factors subsumed in the original determination of reasonable hours and 23 rates, however, should not be used to adjust the lodestar figure. United Steelworkers 24 25 26 27 28 (Busch Decl. at ¶ 11). Since the hourly rate in the lodestar figure is determined by a reasonable hourly rate in the community in which the action is located, the rate for comparable lawyers in Los Angeles is the benchmark. Perfect 10, Inc. v. Giganews, Inc., 2015 WL 1746484, at *15 (C.D. Cal. Mar. 24, 2015). Mr. Busch’s experience and accomplishments would entitle him to charge at least $700 per hour for his work in this case. (Busch Decl. at ¶ 11; Pearl Decl. at ¶¶10-12). Therefore, the $600 rate in more than fair and reasonable. (Pearl Decl. at ¶¶ 10-12). 18 Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 24 of 31 Page ID #:14083 1 of Am. v. Phelps Dodge Corp., 896 F.2d 403, 406 (9th Cir. 1990). “Calculating the 2 lodestar is the critical inquiry, therefore, because there is a strong presumption that it 3 is a reasonable fee.” Id. Further, “[t]he Supreme Court has deemed one factor—the 4 fixed or contingent nature of the fee—irrelevant to the fee calculation. . . .” Stern v. 5 Does, 978 F. Supp. 2d 1031, 1053 (C.D. Cal. 2011) (citing Davis v. City and County 6 of San Francisco, 976 F.2d 1536, 1546 n.4 (9th Cir. 1992); see also City of 7 Burlington v. Dague, 505 U.S. 557 (1992); Perfect 10, Inc., 2015 WL 1746484, at 8 *56 (The court held “[a]t a minimum the rate an attorney actually charges its client is 9 a ‘good starting to point’ because ‘the actual rate that [the attorney] can command in 10 the market is itself highly relevant proof of the prevailing community rate.’”).13 11 Nona and Frankie Gaye’s counsel are applying an hourly rate substantially 12 below the customary rate in the community for attorneys with comparable experience 13 in the field. All the hourly rates utilized are eminently reasonable for lawyers of 14 comparable experience, as set forth by the Declaration of an expert, Richard Pearl, 15 submitted contemporaneously in connection with this fee application. (Busch Decl. at 16 ¶ 11; Pearl Decl. at ¶¶ 10-12). Furthermore, the litigation required extensive hours 17 from counsel to appropriately litigate the claim through the lengthy trial in this 18 matter. Accordingly, the Kerr factors confirm that the requested fee award is 19 reasonable. 20 3. 21 The “After the Dance” claim should not affect this Fee Petition 22 The “After the Dance” (“ATD”) infringement claim was such a minor and 23 inconsequential part of the overall litigation that it should not affect the conclusion 24 that the Gaye Parties were the prevailing party overall in this case. Brighton 25 Collectibles, 2009 WL 160235, at *3 (“no apportionment or allocation is required” 26 27 28 13 Nona and Frankie Gaye retained counsel on a contingency basis. (Busch Decl. at ¶ 10). 19 Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 25 of 31 Page ID #:14084 1 where “claims were based on the same governing law” and the prevailing party is 2 “awarded substantial damages”), citing Creative Computing v. Getloaded.com, LLC, 3 386 F. 3d 930, 937 (9th Cir. 2004). Therefore, this motion for Fees should not be 4 reduced by any time or expense related to the ATD claim. Nonetheless, counsel for 5 Nona and Frankie Gaye have not submitted any time specifically related to ATD, and 6 have reduced their fees by taking ATD into account, as reflected in the attached 7 Declaration of counsel. (Busch Decl. at ¶ 19).14 8 III. 9 THE GAYE PARTIES SHOULD BE AWARDED NON-TAXABLE COSTS 10 In addition to an award of attorneys’ fees, Nona and Frankie Gaye are entitled 11 to reimbursement for non-taxable costs. 17 U.S.C. § 505 (“In any civil action under 12 this title, the court in its discretion may allow the recovery of full costs by or against 13 any party other than the United States or an officer thereof.”). “The Ninth Circuit . . . 14 has held that the words ‘full costs’ in § 505 reflect an intent on the part of Congress to 15 allow recovery of non-taxable costs, such as expert witness fees.” ExperExchange, 16 Inc. v. Doculex, Inc., No. C-08-038-03875 JCS, 2010 WL 1881484, at *11 (N.D. Cal. 17 May 10, 2010) (quoting Twentieth Century Fox Film Corp. v. Entm’t Distrib., 429 18 F.3d 869, 885 (9th Cir. 2005)). “In addition to regular taxable, allowable costs under 19 section 505 include costs for service of process, deposition expenses, copying, 20 computer assisted legal research, expert witness fees, and travel costs.” Perfect 10, 21 Inc., 2015 WL 1746484, at *6. These non-taxable costs include costs for local 22 counsel, travel costs, mileage, hotels, meals, copying costs, shipping costs, as well as 23 24 25 26 27 28 14 Nona and Frankie Gaye had asserted counterclaims against Sony/ATV Music Publishing Acquisition, Inc., and its subsidiaries EMI April Music, Inc. and Jobete Music Co., Inc. These claims were settled prior to the trial proceedings in this matter. (Dkt. No. 57). On January 14, 2014, the claims against these counterclaim-defendants were dismissed with prejudice. (Dkt. Nos. 57-1, 59). Nona and Frankie Gaye are not seeking attorney’s fees with respect to any time devoted by their attorneys to the dispute Nona and Frankie Gaye had with EMI April Music, Inc., and have removed such fees from their submission. (See Busch Decl. at ¶ 19). 20 Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 26 of 31 Page ID #:14085 1 the expert witness fees of Thomas Court, Ronald Aston, Gary Cohen, Nancie Stern, 2 Mike Alleyne, Judith Finell and Dr. Ingrid Monson. These costs and expert witness 3 fees are set out as Exhibit F to the Declaration of Richard S. Busch. Again, costs 4 related to “Blurred” only are being sought, as reflected in the attached Declarations of 5 each of the aforementioned experts. 6 A. The Gaye Parties Requirements to Litigate the Lawsuit Successfully 7 Were Appropriate and Reasonable Given the Distinctive 8 Characteristics of the Copyright Infringement Claim 9 As this Court knows from its involvement, this was a strongly contested case, 10 which means there were many specific litigation tasks required. Plaintiffs/Counter- 11 Defendants took 14 depositions, including a second deposition of expert witness 12 Judith Finell. The Gaye Parties took 12 depositions. This case also required an 13 ancillary proceeding in the Southern District of New York related to a motion to 14 quash a subpoena served by the Plaintiffs/Counter-Defendants on a consulting and 15 therefore non-disclosed expert. The Gaye Parties successfully quashed that subpoena. 16 In addition to these depositions, and all other discovery, there were a 17 significant number of motions. There have been 476 entries on the Court’s docket 18 sheet as of January 9, 2015. In short, Nona and Frankie Gaye were required to expend 19 a very large effort to achieve the vindication and remedy to which they were entitled 20 and achieved. Moreover, even after the trial, there have been very significant post- 21 trial motions. 22 Based on the testimony of the expert witnesses and additional evidence 23 discussed below, the Gaye Parties received a complete victory on the “Blurred” 24 claim. That result could not have been obtained without a substantial effort by 25 counsel for Nona and Frankie Gaye. Twentieth Century Fox Film Corp. v. Entm’t 26 Distrib., 429 F.3d 869, 884 (9th Cir. 2005) (“Rare, indeed, is the litigant who doesn’t 27 lose some skirmishes on the way to winning the war. Lawsuits usually involve many 28 reasonable disputed issues and a lawyer who takes on only those battles he is certain 21 Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 27 of 31 Page ID #:14086 1 2 of winning is probably not serving his client vigorously enough.”) (citation omitted). 1. The Gaye Parties’ Expert Musicologists 3 Both Judith Finell and Dr. Ingrid Monson were necessary to the Gaye Parties’ 4 case to establish copyright infringement by Plaintiffs/Counter-Defendants. Each 5 expert’s testimony was affirmatively used and relied on at trial. Ms. Finell testified 6 extensively about the similarities between “Blurred” and “Got To,” while Dr. 7 Monson testified on prior art issues. Specifically, Ms. Finell testified at trial, in detail, 8 concerning how the musical elements in “Blurred” copied compositional elements of 9 “Got To.” Ms. Finell testified that there were no less than eight separate substantial 10 similarities found in “Blurred” that were contained in “Got To.” (Dkt. No. 14 at 47- 11 64; Dkt. No. 263 at 6-52; Dkt. No. 112-3; see generally Dkt. Nos. 332, 333, 334, 12 336). These similarities all indicated there was infringement of “Got To” by 13 “Blurred.” In fact, Ms. Finell testified almost all of the 130 bars of “Blurred” contain 14 at least one of the elements of “Got To.” (Dkt. No. 336 at 160:4-6). 15 Further, throughout the litigation, Ms. Finell was required for her services as an 16 expert in musicology. For example, Plaintiffs/Counter-Defendants’ filed numerous 17 pre-trial Motions, which contained reports from Plaintiffs/Counter-Defendants’ 18 expert witness discussing “Blurred” and “Got To” on a level that only a professional 19 trained musician would be able to understand and evaluate. Ms. Finell assistance was 20 required for each of these Motions and her services were invaluable to Nona and 21 Frankie Gaye. 22 In addition, Ms. Finell was also necessary to attend the depositions of 23 Plaintiffs/Counter-Defendants’ expert witness as well as the depositions of Robin 24 Thicke and Pharrell Williams to provide support to Nona and Frankie Gaye’s counsel 25 for technical questions in the realm of composition and musicology. Her expertise in 26 understanding and evaluating the statements made by Plaintiffs/Counter-Defendants’ 27 expert and Plaintiffs/Counter-Defendants themselves was required for appropriately 28 questioning the witnesses to properly litigate this matter. 22 Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 28 of 31 Page ID #:14087 1 Further, this copyright infringement lawsuit involved an area of copyright law 2 that required the years of understanding and knowledge acquired by a musicologist. 3 Both Ms. Finell and Dr. Monson are respected in their fields and their expertise was 4 required in order to fully understand the compositional breakdown of both “Blurred” 5 and “Got To.” In addition, in order to fully understand each composition, Ms. Finell 6 and Dr. Monson were required to spend a multitude of hours examining each 7 composition from a broad spectrum down to each and every note in order to fully 8 understand and clarify the specific reasons “Blurred” infringed on “Got To.” Ms. 9 Finell and Dr. Monson provided an invaluable service in this lawsuit and Nona and 10 Frankie Gaye respectfully request that their time and attention be compensated for in 11 this matter. 12 The testimony of Ms. Finell and Dr. Monson, both at their depositions and 13 trial, as well as their expert reports and analysis, were used to oppose the inconsistent 14 statements of Plaintiffs/Counter-Defendants’ expert witness. Their reports and 15 assistance throughout this litigation was essential to a successful verdict for the Gaye 16 Parties. Their qualifications as experts in musicology cannot legitimately be 17 questioned, and the support they provided throughout the litigation were reasonable 18 and necessary. 19 2. Additional Expert Witnesses for the Gaye Parties 20 Nancie Stern, the licensing expert for the Gaye Parties, testified that part of the 21 process of determining the market value of a particular license includes analyzing the 22 similarities between the new and existing compositions to determine the nature and 23 extent of use. (Dkt. No. 334 at 125:10-15). Ms. Stern testified that “the melody was 24 the most predominant factor in the hook to the song.” (Dkt. No. 351 at 36:10-18, 25 36:22-37:5). Based on her analysis applying industry custom and practice and her 26 vast experience, Ms. Stern concluded the use of “Got To” in “Blurred” would result 27 in a 50% licensing fee being granted to the Gaye Parties. (Dkt. No. 334 at 27:18-22, 28 28:16-22). In fact, this Court relied in part on the testimony of Ms. Stern’s in granting 23 Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 29 of 31 Page ID #:14088 1 the Gaye Parties’ request for a running royalty of 50% of the songwriter and 2 publishing revenue of “Blurred.” (Dkt. No. 423 at 51-53). 3 Gary Cohen, a Certified Public Accountant, was essential to providing 4 testimony regarding profits of “Blurred” and working with representatives of 5 Plaintiffs/Counter-Defendants in establishing the total profits of “Blurred,” which 6 was stipulated to at trial. In addition, the jury and this Court relied on the expertise 7 and work of Mr. Cohen in determining an award of damages against the 8 Plaintiffs/Counter-Defendants, and specifically, Thicke and Williams. Mr. Cohen’s 9 expertise in royalty matters related to the music industry was indispensable to the 10 lawsuit and his expertise was required in order to make an informed decision when 11 determining damages for the infringement of “Got To” by “Blurred.” 12 As the Gaye Parties were not permitted by the Court to play Marvin Gaye’s full 13 sound recordings, or particular elements of it for the jury, Ronald Aston and Thomas 14 Court also provided valuable services to the Gaye Parties in creating audio samples, 15 which were used at trial to demonstrate the similarities between “Blurred” and “Got 16 To.” Mr. Aston and Mr. Court were able to create audio mixes and “mashups” of both 17 “Blurred” and “Got To” using advanced music computer software that is currently 18 being used by music professionals today. Their expertise in creating audio recordings 19 depicting the similarities between “Blurred” and “Got To” was used by counsel for 20 Nona and Frankie Gaye and by the Gaye Parties’ expert witnesses at trial. 21 The Gaye Parties also relied on other experts including RLM Trial Graphix and 22 Michael Alleyne to prepare for trial in this matter. RLM Trial Graphix helped Nona 23 and Frankie Gaye’s counsel and the Gaye Parties’ expert witnesses demonstrate to the 24 jury and to the Court the similarities in which they were discussing at trial. Their 25 assistance with trial exhibits and technology at trial allowed Nona and Frankie Gaye’s 26 counsel and expert witnesses to fully identify the similarities at trial and provide the 27 28 24 Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 30 of 31 Page ID #:14089 1 jury with an understanding of the precise manner in which “Blurred” infringed upon 2 “Got To.”15 3 B. The Gaye Parties’ Costs Were Reasonable and Necessary 4 Each expert utilized by the Gaye Parties throughout this litigation was 5 reasonable and necessary. Due to the nature of music copyright litigation, expert 6 testimony and assistance is vital to fully and properly litigate claims. Expert 7 assistance is required to understand the nuances of a musical composition in and of 8 itself. The assistance of an expert becomes even more necessary when two 9 compositions must be examined to determine copyright infringement. 10 In the present matter, the costs incurred as part of this claim were necessary to 11 fully litigate the infringement action. The litigation involved in this matter was 12 lengthy and required considerable costs in order for the Gaye Parties to properly 13 protect their interests in “Got To.” These non-taxable costs were reasonable given the 14 nature of the lawsuit and should be awarded to Nona and Frankie Gaye. 15 None of the favorable testimony that resulted in the jury verdict would have 16 been possible without the hard work and knowledge of each of these experts. Their 17 time, attention, and knowledge of music and the music industry was pivotal in 18 assisting the Gaye Parties and their counsel, and ultimately prevailing in this action. 19 As discussed above, the Gaye Parties’ witnesses demonstrated their knowledge, 20 accuracy, and truthfulness in their respective fields. The jury’s verdict solidifies the 21 fact that Plaintiffs/Counter-Defendants did infringe upon the copyright of “Got To,” 22 and entitles Nona and Frankie Gaye to reimbursement of all fees and costs. See 17 23 24 25 26 27 28 15 Costs associated with the creation of demonstratives utilized by said presenters are recoverable if necessarily obtained for the case. See Maxwell v. Hapag-Lloyd Aktiengesellschaft, 862 F.2d 767, 770 (9th Cir. 1988). The costs associated with the trial presenter were vital for the case, and thus should be awarded. See Twentieth Century Fox Film Corp. v. Entertainment Distributing, 429 F.3d 869, 885 (9th Cir. 2005) (“Construing § 505 as limiting the costs that may be awarded to any particular subset of taxable costs effectively reads the word ‘full’ out of the statute. We must give every word in a statute meaning.”). 25 Case 2:13-cv-06004-JAK-AGR Document 479-1 Filed 01/11/16 Page 31 of 31 Page ID #:14090 1 U.S.C. § 505; Twentieth Century Fox Film Corp. v. Entm’t Distrib., 429 F.3d 869, 2 885 (9th Cir. 2005). 3 IV. CONCLUSION 4 Nona and Frankie Gaye respectfully request the Court grant the Motion and award 5 Nona and Frankie Gaye $2,663,905.60 in attorneys’ fees and $776,932.71 in 6 allowable expenses. 7 8 9 10 11 12 13 14 15 16 17 18 19 Dated: January 11, 2016 Respectfully submitted, KING & BALLOW By: /s/ Richard S. Busch RICHARD S. BUSCH PAUL H. DUVALL SARA R. ELLIS WARGO & FRENCH, LLP By: /s/ Mark L. Block MARK L. BLOCK ARNOLD & PORTER BY: /S/DANIEL ASIMOW DANIEL ASIMOW MARTIN GLICK Attorneys for Nona and Frankie Gaye 20 21 22 23 24 25 26 27 28 26