United States Court of Appeals
For the First Circuit
No. 10-1780
LATIN AMERICAN MUSIC COMPANY D/B/A, ASOCIACIÓN DE
COMPOSITORES Y EDITORES DE MÚSICA LATINO AMERICANA
(ACEMLA); ASOCIACIÓN DE COMPOSITORES Y EDITORES DE MÚSICA
LATINO AMERICANA,
Plaintiffs, Appellants,
v.
AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS (ASCAP),
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.
Mauricio Hernandez Arroyo, and the Law Offices of Mauricio
Hernandez Arroyo, on brief for appellants.
Richard H. Reimer, Diego A. Ramos, Fiddler Gonzáles &
Rodriguez, PSC, Stephen S. Young, and Holland & Knight LLP, on
brief for appellee.
April 21, 2011
HOWARD, Circuit Judge. In this copyright case, plaintiff
Latin American Music Company ("LAMCO") appeals from orders awarding
attorneys' fees incurred below in favor of prevailing defendant
American Society of Composers, Authors and Publishers ("ASCAP").
We readily affirm.
I. BACKGROUND1
We begin by briefly setting the stage. After
successfully defending on appeal a jury verdict finding that it had
not infringed, ASCAP moved for attorneys' fees and costs in the
district court. It requested slightly more than $82,000, incurred
in pretrial and trial proceedings between 2005 and 2008. LAMCO
opposed the motion. The district court carefully considered
ASCAP's request and agreed with the bulk of it. The court awarded
ASCAP approximately $55,000 in attorneys' fees and taxed $2,000 in
costs.
LAMCO moved for reconsideration under Fed. R. Civ. P.
59(e). The court denied LAMCO's motion, but took the opportunity
to modify the fee award. The court explained that, in its initial
order, it had reduced the fees sought for one attorney by ten
percent based on "the high percentage of tasks performed by this
1
We assume familiarity with the history of this case, and
direct the interested reader to Latin Am. Music Co. v. Am. Soc'y of
Composers, Authors and Publishers, 629 F.3d 262 (1st Cir. 2010)
(per curiam), Latin Am. Music Co. v. Am. Soc'y 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).
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partner as compared with those performed by lower-priced
associates." On further reflection, however, the court decided
against "second-guessing a firm's allocation of tasks where the
prevailing party was satisfied with counsel's performance."
Accordingly, the court struck that particular reduction and
increased the total award, including costs, to just under $62,000.
LAMCO appealed the fee award and the denial of
reconsideration.
II. DISCUSSION
A. Timely Registration and Attorneys' Fees
LAMCO's lead argument on appeal is that attorneys' fees
are barred because the copyright claim to the disputed song,
"Caballo Viejo," was not timely registered.2 See 17 U.S.C. § 412
(2006). We disagree for two reasons: one of fact and the other of
law. As a matter of fact, the copyright was timely registered. As
a matter of law, the statute does not apply to a defendant who is
successful in defending claims that it infringed.
2
This argument was not sufficiently articulated in the
district court. As presented there, the argument consisted of only
two sentences, no case citations, and precious little analysis.
Arguments of this stock normally are considered waived on appeal.
In re Olympic Mills Corp., 477 F.3d 1, 17 (1st Cir. 2007); McCoy v.
Mass. Institute of Tech., 950 F.2d 13, 21-22 (1st Cir. 1991).
Here, however, the district court did LAMCO's homework,
thoughtfully considered the question, and ultimately disagreed.
Given these circumstances, and because the question is not a close
one, we proceed to address the merits.
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Section 412 bars recovery of statutory damages under
section 504 and attorneys' fees under section 505 by copyright
owners who failed to register the work before the alleged
infringement began. Id. § 412(2) (prohibiting certain remedies for
"any infringement of copyright commenced after first publication of
the work and before the effective date of its registration, unless
such registration is made within three months after the first
publication of the work"); see also Johnson v. Gordon, 409 F.3d 12,
20 (1st Cir. 2005) (recognizing that registration is "a condition
precedent for obtaining certain remedies, such as statutory damages
and attorneys' fees").
By its plain language, section 412 does not apply in this
case. According to LAMCO's complaint, the alleged infringement
began in 1994. "Caballo Viejo," however, was registered with the
Copyright Office in 1983, more than a decade earlier.
Besides, there is nothing in the statute that prohibits
fee awards in cases, like this one, of noninfringement. The reason
is obvious: only copyright owners may register their copyright
claims, the conduct incentivized by section 412. A defendant
accused of infringing someone else's copyright could not possibly
comply with the statute's registration criterion. Section 412 thus
does not, logically, apply to alleged infringers. See O'Well
Novelty Co. v. Offenbacher, Inc., 225 F.3d 655, 2000 WL 1055108, at
*7 (4th Cir. Aug. 1, 2000) (unpublished table decision) (holding
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that section 412 "only applies to plaintiffs who assert copyright
infringement claims and not to defendants who successfully defend
against such claims"); Domingo Cambeiro Prof'l Corp. v. Advent, 211
F.3d 1273, 2000 WL 262597, at *4 (9th Cir. Mar. 7, 2000)
(unpublished table decision) (affirming fee award to prevailing
defendant; explaining that section 412 "does not apply to this case
because there has been no finding of infringement"). See generally
4 Melville B. Nimmer and David Nimmer, Nimmer on Copyright §
14.10[B][2] (rev. ed. 2010) ("[Section 412] does not speak to a
finding of noninfringement. Accordingly, if [the alleged
infringer] prevails, nothing on the face of the statute bars
awarding fees to it. In this way, the registration requirement is
nonsymmetrical."); 6 William F. Patry, Patry on Copyright § 22:204
(2010) (similar).3
B. Prevailing Party Status and Reasonableness
LAMCO also challenges ASCAP's status as a prevailing
party and the reasonableness of the fee award. Both challenges
fail.
Section 505 permits courts, in their discretion, to award
reasonable attorneys' fees to the prevailing party. 17 U.S.C. §
505 (2006); Fogerty v. Fantasy, Inc., 510 U.S. 517, 535 (1994). A
3
LAMCO's reliance on M & D Int'l Corp. v. Chan, 901 F. Supp.
1502 (D. Haw. 1995), is misplaced. In Chan, the parties each
claimed copyrights in the disputed works, id. at 1504, not
performance licenses from third-party copyright owners, as in this
case.
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"prevailing party" is "one who has 'prevailed on the merits of at
least some claims,'" Torres-Negrón v. J & N Records, LLC, 504 F.3d
151, 164 (1st Cir. 2007) (quoting Buckhannon Bd. & Care Home, Inc.
v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 603 (2001)),
no matter whether the plaintiff or the defendant prevailed. See
Fogerty, 510 U.S. at 535. "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.'"
Latin Am. Music Co., 629 F.3d at 263 (quoting García-Goyco v. Law
Envtl. Consultants, Inc., 428 F.3d 14, 20 (1st Cir. 2005)).
Our review of a fee award to a prevailing party is
"extremely deferential." García-Goyco, 428 F.3d at 22. "We will
disturb a ruling under section 505 only if the record persuades us
that the trial court indulged in a serious lapse in judgment." Id.
(quoting Lotus Dev. Corp. v. Borland Int'l, Inc., 140 F.3d 70, 72
(1st Cir. 1998)).
There is no question that ASCAP is a prevailing party.
It initially obtained summary judgment on LAMCO's infringement
claims. We affirmed that ruling in significant part, but remanded
because of disputed facts concerning one song. On remand ASCAP
obtained a favorable jury verdict at trial and successfully
defended that verdict in a later appeal. ASCAP then sought
attorneys' fees in the district court and submitted detailed
billing records establishing the reasonableness of its request.
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Based on its discretion and the weakness of LAMCO's claims, the
court awarded ASCAP a majority of those fees. We have carefully
reviewed ASCAP's documentation and the court's rescript, and are
satisfied that all aspects of the fee award fall comfortably within
the court's discretion.
C. Motion for Reconsideration
As its final lament, LAMCO argues that its motion for
reconsideration should have been granted. The hurdle is a high
one, see Palmer v. Champion Mortg., 465 F.3d 24, 29 (1st Cir. 2006)
("[T]he movant must demonstrate either that newly discovered
evidence (not previously available) has come to light or that the
rending court committed a manifest error of law."), and our
standard of review is correspondingly deferential, see id. ("[W]e
will not overturn the district court's denial of a motion for
reconsideration absent an abuse of discretion."). Here, the
district court was correct that LAMCO's motion, which advanced
nothing new or convincing, fell far short. There was no abuse of
discretion.4
Affirmed. Costs to appellee.
4
LAMCO claims in passing that the district court's decision
sua sponte to increase the fee award was error. The argument is
waived. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
("[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.").
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