14-3367-cv; 15-1573
Effie Film, LLC v. Murphy
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 16th day of October, two thousand fifteen.
5
6 PRESENT: DENNIS JACOBS,
7 RAYMOND J. LOHIER, JR.,
8 Circuit Judges,
9 GEOFFREY W. CRAWFORD,*
10 District Judge.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 EFFIE FILM, LLC,
14 Plaintiff-Appellee,
15
16 -v.- 14-3367-cv; 15-1573-cv
17
18 GREGORY MURPHY,
19 Defendant-Appellant.
20 - - - - - - - - - - - - - - - - - - - -X
21
22 FOR APPELLANT: Gregory Murphy, pro se, New
23 York, N.Y.
*
Judge Geoffrey W. Crawford, of the United States
District Court for the District of Vermont, sitting by
designation.
1
1
2 FOR APPELLEE: Andrew C. Nichols and
3 Christopher E. Mills, Winston &
4 Strawn LLP, Washington, D.C.,
5 Linda T. Coberly, Winston &
6 Strawn LLP, Chicago, IL.
7
8 Appeal from an order of the United States District
9 Court for the Southern District of New York (Griesa, J.).
10
11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12 AND DECREED that Appellee’s motion to dismiss be DENIED and
13 the order of the district court awarding attorney’s fees be
14 REVERSED. The appeal from the imposition of an appeal bond,
15 docketed under 15-1573, is DISMISSED as moot.
16
17 Gregory Murphy, pro se, appeals from the order of the
18 United States District Court for the Southern District of
19 New York (Griesa, J.), awarding costs and attorney’s fees in
20 the amount of $499,068.70 to plaintiff Effie Film, LLC
21 (“Effie Film”). We assume the parties’ familiarity with the
22 underlying facts, the procedural history, and the issues
23 presented for review.
24
25 This appeal arises out of a copyright dispute between
26 Murphy, the author of a stage play and a screenplay (both
27 titled The Countess), and Effie Film, which produced the
28 film Effie Gray based on the screenplay Effie. The Countess
29 and Effie are both fictionalized accounts about the marriage
30 of Effie Gray to art critic John Ruskin, which led to a
31 famous Victorian scandal. Effie Film sued Murphy for a
32 declaratory judgment that Effie did not infringe on The
33 Countess. In its opinion on the merits, the district court
34 granted judgment in favor of Effie Film on the ground that
35 the protectable elements of The Countess were not
36 substantially similar to Effie. Effie Film, LLC v. Murphy
37 (“Effie I”), 932 F. Supp. 2d 538, 560 (S.D.N.Y. 2013).1 We
38 affirmed. Effie Film, LLC v. Murphy (“Effie II”), 564 F.
39 App’x 631 (2d Cir. 2014) (summary order).
40
1
The film Effie Gray had not yet been released at
the time of the district court’s decision. The court held
that the film would not be infringing if it adhered to the
non-infringing version of the screenplay Effie. Effie I,
932 F. Supp. 2d at 560.
2
1 The district court then awarded costs and attorney’s
2 fees to Effie Film in the amount of $499,068.70. Under the
3 Copyright Act, a court “in its discretion may allow the
4 recovery of full costs” and “may also award a reasonable
5 attorney’s fee to the prevailing party as part of the
6 costs.” 17 U.S.C. § 505. “When determining whether to
7 award attorneys fees, district courts may consider such
8 factors as (1) the frivolousness of the non-prevailing
9 party’s claims or defenses; (2) the party’s motivation; (3)
10 whether the claims or defenses were objectively
11 unreasonable; and (4) compensation and deterrence.” Bryant
12 v. Media Right Prods., Inc., 603 F.3d 135, 144 (2d Cir.
13 2010). “The third factor—objective unreasonableness—should
14 be given substantial weight.” Id. We review an award of
15 attorney’s fees under § 505 for abuse of discretion but the
16 fees must be “reasonable in terms of the circumstances of
17 the particular case.” Matthew Bender & Co. v. W. Pub. Co.,
18 240 F.3d 116, 121 (2d Cir. 2001) (internal quotation marks
19 omitted).
20
21 1. The district court ruled that the “objective
22 unreasonableness” standard was “easily satisfied” based on
23 our “summary affirmance” in Effie II, which concluded that
24 Murphy’s arguments were “without merit.” J.A. 15. The
25 district court cited no other factors to support the award
26 of almost half a million dollars against a litigant, who was
27 (by that stage of the litigation) pro se, other than to
28 state that the award was “consistent with the goals of the
29 Copyright Act because it will help deter future objectively
30 unreasonable lawsuits.” Id.
31
32 As an initial matter, our summary order was not a
33 “summary affirmance.” Summary affirmance is a rarely used
34 “short-cut” that is available only when an appeal is “truly
35 frivolous.” United States v. Davis, 598 F.3d 10, 13 (2d
36 Cir. 2010) (internal quotation marks omitted). The
37 distinction between summary affirmance and a summary order
38 is critical, because while the former may be an adequate
39 basis for awarding attorney’s fees, the latter, without
40 more, is not. Our summary order did not conclude that
41 Murphy’s claims were truly frivolous; rather, we simply
42 affirmed Ellie I after determining that Murphy’s appellate
43 arguments were without merit. Because the district court
44 based its decision solely on its mischaracterization of
45 Ellie II as holding Murphy’s arguments were objectively
46 unreasonable, we conclude that the district court abused its
47 discretion in granting attorney’s fees to Effie Film. We
3
1 discern no other basis in this record for an award of
2 attorney’s fees to Effie Film under 17 U.S.C. § 505.
3
4 2. Effie Film also moved to dismiss this appeal due to
5 Murphy’s failure to post an appeal bond. That motion is
6 denied in light of our strong preference for resolving
7 disputes on the merits. See Enron Oil Corp. v. Diakuhara,
8 10 F.3d 90, 95 (2d Cir. 1993); see also Baker v. Urban
9 Outfitters, Inc., 249 F. App’x 845, 846 (2d Cir. 2007)
10 (summary order) (deciding appeal on the merits without
11 reaching failure to comply with appeal bond).
12
13 For the foregoing reasons, we hereby REVERSE the order
14 of the district court awarding attorney’s fees, DENY
15 Appellee’s motion to dismiss, and DISMISS the appeal of the
16 imposition of an appeal bond, docketed under 15-1573, as
17 moot.
18
19 FOR THE COURT:
20 CATHERINE O’HAGAN WOLFE, CLERK
21
4