United States Court of Appeals
For the First Circuit
No. 08-1498
LATIN AMERICAN MUSIC COMPANY, d/b/a Asociación de Compositores y
Editores de Música Latinoamericana (ACEMLA); ASOCIACIÓN DE
COMPOSITORES Y EDITORES DE MÚSICA LATINOAMERICANA (ACEMLA),
Plaintiffs, Appellants,
v.
AMERICAN SOCIETY OF COMPOSERS AUTHORS AND PUBLISHERS,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Baldock* and Howard,
Circuit Judges.
Mauricio Hernández Arroyo and Law Offices of Mauricio
Hernández Arroyo, on brief for appellants.
Richard H. Reimer, Diego A. Ramos, Fiddler González &
Rodríguez, PSC, Stephen S. Young, and Holland & Knight LLP, on
brief for appellee.
December 28, 2010
*
Of the Tenth Circuit, sitting by designation.
PER CURIAM. In this copyright case, plaintiff Latin
American Music Company ("LAMCO") has filed its second motion for
reconsideration of an order awarding attorneys' fees incurred on
appeal in favor of defendant American Society of Composers, Authors
and Publishers ("ASCAP"). Once again the motion is denied.
We begin with a brief sketch of the relevant background.1
As a result of its success defending a favorable jury verdict,
ASCAP applied for attorneys' fees incurred on appeal. LAMCO,
however, failed to respond within the time set by our local rules.
See First Circuit Local Rule 39.1(b) (requiring response to
application for attorneys' fees within thirty days). We carefully
reviewed ASCAP's application, and, after an additional month had
passed without response, we granted the application and awarded
ASCAP $89,327.52. Ten days after our order entered, LAMCO filed an
objection to ASCAP's application styled as a motion for
reconsideration. LAMCO attributed its tardiness to an "office
error," and raised a host of issues challenging the award,
including (1) ASCAP's status as a prevailing party, (2) whether
ASCAP registered the disputed song,2 and (3) the overall
reasonableness of the award. We reexamined ASCAP's application in
1
For further background, see Latin Am. Music Co. v. Am.
Society of Composers Authors and Publishers, 593 F.3d 95 (1st Cir.
2010), and Latin Am. Music Co. v. Archdiocese, 499 F.3d 32 (1st
Cir. 2007).
2
"Caballo Viejo," or "Old Horse," a popular folk song in
Venezuela.
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light of LAMCO's untimely arguments, but ultimately concluded that
the award should stand. Accordingly, we denied LAMCO's motion.
The present motion covers little new ground. LAMCO
parrots the same excuse for its late objection, incorporates its
earlier arguments against an award, and adds an alternate argument
that, if we still think that attorneys' fees are appropriate, we
should remand to the district court "for the proper determination
of the award." ASCAP counters that LAMCO's arguments lack merit
and cross-moves for sanctions on the basis of LAMCO's repeated
attempts to revisit the award. See First Circuit Local Rule 38.0
(providing for "appropriate sanctions" in appeals involving
vexatious tactics).
The Copyright Act of 1976 permits courts, in their
discretion, to award reasonable attorneys' fees to the prevailing
party. § 101, 17 U.S.C. § 505 (2006); Fogerty v. Fantasy, Inc.,
510 U.S. 517, 535 (1994). A "prevailing party" is one who has
"prevailed on the merits of at least some claims," Torres-Negron v.
J & N Records, LLC, 504 F.3d 151, 164 (1st Cir. 2007) (quoting
Buckhannon Bd. & Care Home, Inc. v. Va. Dep't of Health & Human
Res., 532 U.S. 598, 603 (2001)), no matter whether he be a
plaintiff or a defendant. See Fogerty, 510 U.S. at 535 (involving
prevailing defendant). A showing of frivolity or bad faith is not
required; rather, the prevailing party need only show that its
opponent's copyright claims or defenses were "objectively weak."
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Garcia-Goyco v. Law Envtl. Consultants, Inc., 428 F.3d 14, 20 (1st
Cir. 2005).
We quickly dispense with LAMCO's arguments. First, there
is no serious question that ASCAP prevailed on the merits of
LAMCO's copyright claims. ASCAP was therefore a prevailing party
for purposes of § 505, and we chose, based on our discretion and
the weakness of LAMCO's claims, to award fees. Second, LAMCO's
argument that fees are barred because ASCAP failed to timely
register the disputed song was fatally underdeveloped, and
therefore waived. United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990). Third, LAMCO's challenge to the reasonableness of the
award was undermined, if not forfeited, by its own neglect. Its
objection was filed thirty-nine days late (a full ten days after we
entered the order granting ASCAP's application), and its
explanation for the late filing lacked the detail and support one
would expect under the circumstances. See, e.g., First Circuit
Local Rule 27(a)(2)(B)(i) (requiring submission of affidavits
necessary to support factual assertions in motions).
Finally, LAMCO's request for remand is unwarranted.
Although not appropriate in every case, we can award fees incurred
on appeal where, as here, the prevailing party has submitted
records that establish the reasonableness of the award. See, e.g.,
Gamma Audio & Video, Inc. v. Ean-Chea, 11 F.3d 1106, 1119 (1st Cir.
1993) ("under § 505 . . . this court may make an award of
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attorney's fees to the prevailing party for services rendered on
appeal"); 4 Melville B. Nimmer and David Nimmer, Nimmer on
Copyright § 14.10[E] at 14-242 (rev. ed. 2010) ("when the court of
appeals is in possession of detailed billing records, it may handle
the entire award"); see also Poy v. Boutelis, 92 Fed. App'x 5 (1st
Cir. 2004) (per curiam) (awarding attorneys' fees incurred on
appeal when prevailing party submitted "billing ledger pages
detailing the dates, time spent, and subject matter of counsel's
work").
LAMCO's motion for reconsideration is denied.
ASCAP's cross-motion for sanctions is denied.
So ordered.
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