Case: 11-14175 Date Filed: 10/12/2012 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14175
Non-Argument Calendar
________________________
D.C. Docket No. 1:10-cv-21418-KMM
RAFAEL VERGARA HERMOSILLA,
Plaintiff - Appellant,
versus
THE COCA-COLA COMPANY,
a Delaware corporation,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 12, 2012)
Before CARNES, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Case: 11-14175 Date Filed: 10/12/2012 Page: 2 of 4
Rafael Vergara Hermosilla appeals the award of attorney’s fees and costs to
the Coca-Cola Company, which obtained a summary judgment against his
complaint of copyright infringement. The district court awarded Coca-Cola
attorney’s fees and costs because Vergara “should reasonably have known that his
assignment [of his copyright interest] would be determined to be valid prior to
filing the suit” or, alternatively, “as soon [as] it became clear during discovery that
his claim would lose.” Vergara argues that Coca-Cola is not entitled to recover
any of its expenses because his claim of copyright infringement was objectively
reasonable. We affirm.
Vergara sued Coca-Cola for allegedly infringing a copyright that Vergara
held in a remixed song, the Celebration Mix, which he had adapted into Spanish
for Coca-Cola to use in an advertising campaign. The district court entered
summary judgment in favor of Coca-Cola, and we affirmed on the ground that “the
record establishe[d] without dispute that Vergara assigned [by email] his copyright
interest [in the adaptation] to Universal” Music Latin America, which in turn had
assigned its rights to the adaptation to Coca-Cola. Hermosilla v. The Coca-Cola
Co., No. 11-11317 (11th Cir. Nov. 3, 2011).
Coca-Cola moved for an award of $1,576,852.48 for attorney’s fees and
$125,285.78 for costs, but the district court awarded Coca-Cola $535,135 for
2
Case: 11-14175 Date Filed: 10/12/2012 Page: 3 of 4
attorney’s fees and $43,011.99 for costs. The district court reduced the hourly rate
and number of hours billed by counsel and support personnel. Although the
district court awarded costs “necessary in the case,” such as court costs,
photocopying, and telephone charges, see 28 U.S.C. § 1920, the district court
denied or reduced the charges for litigation support services, travel, and retaining
an expert witness.
The Copyright Act gives a district court the district power to award “costs
by or against any party” and “a reasonable attorney’s fee to the prevailing party.”
17 U.S.C. § 505. When the district court weighs the factors that the Supreme
Court identified to “guide courts’ discretion” in Fogerty v. Fantasy, Inc., 510 U.S.
517, 534 & n.19, 114 S. Ct. 1023, 1033 & n.19 (1994), “we will not question the
court’s decision to grant or deny fees absent an abuse of that discretion,” MiTek
Holdings, Inc. v. Arce Eng’g Co., 198 F.3d 840, 842 (11th Cir. 1999). “We will
find an abuse of discretion only when a decision is in clear error, the district court
applied an incorrect legal standard or followed improper procedures, or when
neither the district court’s decision nor the record provide sufficient explanation to
enable meaningful appellate review.” Friends of the Everglades v. S. Fla. Water
Mgmt. Dist., 678 F.3d 1199, 1201 (11th Cir. 2012).
The district court did not abuse its discretion when it awarded attorney’s
3
Case: 11-14175 Date Filed: 10/12/2012 Page: 4 of 4
fees and costs to Coca-Cola. The district court ruled that Vergara’s litigation was
“objectively unreasonable” because Florida law, which Vergara acknowledged as
governing the interpretation of copyright contracts, provided that an email
satisfied the statute of frauds. The district court was entitled to conclude that
Vergara’s complaint, or at least his decision to continue litigating his complaint,
was factually and legally unreasonable. The purposes of the copyright law are
served only when parties “litigate meritorious claims of infringement.” Fogerty,
510 U.S. at 527, 114 S. Ct. at 1030; see MiTek, 198 F.3d at 842.
We AFFIRM the award of attorney’s fees and costs to the Coca-Cola
Company.
4