FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BAPPI LAHIRI, an individual;
SAREGAMA INDIA LIMITED,
Plaintiffs,
ANTHONY KORNARENS, Esquire,
Movant-Appellant, No. 09-55111
v. D.C. No.
UNIVERSAL MUSIC AND VIDEO 2:02-cv-08330-
DISTRIBUTION CORPORATION, a ODW-CT
Delaware corporation; INTERSCOPE OPINION
RECORDS, a corporation;
AFTERMATH RECORDS, a business
entity form unknown; ANDRE
RAMELLE YOUNG,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Argued and Submitted
April 9, 2010—Pasadena, California
Filed June 7, 2010
Before: Harry Pregerson and Robert R. Beezer,
Circuit Judges, and Suzanne B. Conlon,* District Judge.
Opinion by Judge Conlon
*The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
8127
8130 LAHIRI v. UNIVERSAL MUSIC AND VIDEO
COUNSEL
Curtis A. Cole, Matthew Levinson, Cole Pedroza, LLP, Pasa-
dena, California, for the movant-appellant.
Russell J. Frackman, Mitchell Silberberg & Knupp, LLP, Los
Angeles, California, Jeffrey D. Goldman, Loeb & Loeb, LLP,
Los Angeles, California, for the defendants-appellees.
OPINION
CONLON, District Judge:
Anthony Kornarens is an attorney specializing in copyright
law. Kornarens was severely sanctioned by the district court
for his five-year bad faith pursuit of a frivolous copyright
infringement claim. In its 21-page order, the district court
awarded defendants $247,397.28 in attorneys’ fees and
$10,808.76 in costs, under 28 U.S.C. § 19271 and the court’s
inherent sanctioning power. Kornarens appeals, contending
the sanctions were unwarranted and excessive.2 We disagree
and affirm.
I
We have jurisdiction under 28 U.S.C. § 1291. A district
court’s imposition of sanctions is reviewed for abuse of dis-
cretion, and its findings of fact for clear error. Pac. Harbor
1
28 U.S.C. § 1927 provides that an attorney “who so multiplies the pro-
ceedings in any case unreasonably and vexatiously may be required by the
court to satisfy personally the excess costs, expenses, and attorneys’ fees
reasonably incurred because of such conduct.”
2
Kornarens’ client, plaintiff Bappi Lahiri, appealed the district court’s
summary judgment order in defendants’ favor (Lahiri v. Universal Music
& Video Distrib., Inc., 513 F. Supp. 2d 1172 (C.D. Cal. 2007)), but volun-
tarily dismissed the appeal.
LAHIRI v. UNIVERSAL MUSIC AND VIDEO 8131
Capital, Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112, 1117
(9th Cir. 2000). An attorney who unreasonably and vexa-
tiously “multiplies the proceedings” may be required to pay
the excess fees and costs caused by his conduct. 28 U.S.C.
§ 1927. Recklessness suffices for § 1927 sanctions, but sanc-
tions imposed under the district court’s inherent authority
require a bad faith finding. See B.K.B. v. Maui Police Dep’t,
276 F.3d 1091, 1107-08 (9th Cir. 2002) (attorney’s knowing
and reckless introduction of inadmissible evidence was tanta-
mount to bad faith and warranted sanctions under § 1927 and
the court’s inherent power); Fink v. Gomez, 239 F.3d 989,
993-94 (9th Cir. 2001) (attorney’s reckless misstatements of
law and fact, combined with an improper purpose, are sanc-
tionable under the court’s inherent power).
The parties dispute whether a bad faith finding must be
supported by clear and convincing evidence. This court has
not addressed the burden of proof required for a sanctions
award. See, e.g., In re Lehtinen, 564 F.3d 1052, 1061 n.4 (9th
Cir. 2009) (declining to address burden because clear and
convincing evidence of misconduct supported bad faith find-
ing and imposition of sanctions under the court’s inherent
authority); F.J. Hanshaw Enters., Inc. v. Emerald River Dev.,
Inc., 244 F.3d 1128, 1143 n.11 (9th Cir. 2001) (same). The
burden of proof issue need not be resolved here because the
district court’s bad faith finding is supported by clear and con-
vincing evidence.
II
Kornarens represented Bappi Lahiri, who in 1981 com-
posed the song Thoda for an Indian movie. Lahiri composed
Thoda for compensation under an agreement with the film’s
producer, Pramod Films. The parties agreed the law of India
controls the underlying copyright issues. Under Indian law,
Pramod Films, not Lahiri, owned the Thoda copyright as a
work for hire. Pramod Films later assigned its Thoda rights to
Saregama India Limited (“Saregama”).
8132 LAHIRI v. UNIVERSAL MUSIC AND VIDEO
Twenty-one years later, Kornarens filed suit on Lahiri’s
behalf, claiming defendants Universal Music & Video Distri-
bution Corporation, Interscope Records, Aftermath Records
and Andre Ramelle Young (“defendants”) used unauthorized
excerpts of Thoda in violation of the Lanham Act, 15 U.S.C.
§ 1125(a), and engaged in unfair competition under parallel
California law for failure to credit Lahiri’s authorship. Kor-
narens, a copyright specialist, did not include a copyright
infringement claim in the original complaint.
Three months later the Supreme Court granted certiorari in
Dastar Corp. v. Twentieth Century Fox Film Corp., 537 U.S.
1099 (2003). The central issue in Dastar was whether Lan-
ham Act false designation claims were limited to producers of
tangible goods, and excluded Lanham Act protection for
authors of ideas, concepts or communications embodied in the
goods. An adverse decision by the Supreme Court would
clearly jeopardize Lahiri’s Lanham Act and parallel unfair
competition claims.
Three months after the Supreme Court granted certiorari in
Dastar, Lahiri registered a copyright in Thoda with the United
States Copyright Office. On June 2, 2003, the Supreme Court
issued its opinion limiting Lanham Act false designation
claims to producers of tangible goods. Dastar Corp. v. Twen-
tieth Century Fox Film Corp., 539 U.S. 23, 37 (2003). Three
weeks later, Kornarens amended Lahiri’s complaint to add a
Thoda copyright infringement claim under the United States
copyright issued a few months earlier. This became Lahiri’s
sole claim on August 15, 2003, when the district court dis-
missed his Lanham Act and parallel unfair competition claims
under Dastar.
Meanwhile, based on Pramod Films’ assignment of the
Thoda copyright, Saregama sued defendants for infringement.
Lahiri and Saregama’s lawsuits, asserting conflicting claims
of a Thoda copyright, ultimately were consolidated before the
United States District Court for the Central District of Califor-
LAHIRI v. UNIVERSAL MUSIC AND VIDEO 8133
nia. Defendants moved to stay the consolidated cases and pro-
posed to submit the competing copyright ownership claims by
Lahiri and Saregama to an Indian court for resolution. Alter-
natively, defendants moved for summary judgment against
Lahiri on the ground that he did not own a valid copyright in
Thoda; defendants argued that Saregama owned the copyright
under Indian law. Lahiri and Saregama filed cross-motions for
summary judgment on their conflicting claims to ownership
of a Thoda copyright.
After the district court requested supplemental briefing on
whether the consolidated cases should be stayed, Kornarens
submitted an agreement that he mischaracterized as resolving
the issue of copyright ownership between Lahiri and Sare-
gama, purporting to moot the need for a stay and the cross-
motions for summary judgment between Lahiri and Sare-
gama. The district court credited Kornarens’ characterization
of the agreement as resolving conflicting copyright ownership
claims. Contrary to Kornarens’ representations, Lahiri and
Saregama agreed to a 30/70% (respectively) split of any copy-
right infringement recovery from defendants, and the agree-
ment explicitly referred to co-ownership of the Thoda
copyright only for purposes of these consolidated cases. Rely-
ing on the purported co-ownership settlement agreement, the
district court erroneously concluded Lahiri was the co-owner
of the Thoda copyright. This error resulted in the denial of
defendants’ summary judgment motion against Lahiri predi-
cated on the meritorious contention Lahiri lacked a copyright
interest in Thoda. Defendants’ argument that Saregama
owned the Thoda copyright under Indian law was rejected by
the district court without analysis. Contentious litigation
ensued for three more years, resulting in an additional 233
docket entries and three rounds of trial preparation.
On August 9, 2007, the district court granted defendants’
renewed summary judgment motion against Lahiri. After a
thorough analysis, the district court concluded Lahiri did not
have a copyright interest in Thoda under Indian law. Lahiri v.
8134 LAHIRI v. UNIVERSAL MUSIC AND VIDEO
Universal Music & Video Distrib., Inc., 513 F. Supp. 2d 1172
(C.D. Cal. 2007).3 Defendants then moved for $800,752.00 in
attorneys’ fees and $93,787.44 in costs under § 1927 and the
court’s inherent authority to sanction attorney misconduct.
The sanctions issues were fully briefed and the district court
held a hearing before issuing its detailed 21-page order grant-
ing defendants’ motion, but substantially reducing the award
defendants sought.
III
[1] Kornarens argues the district court abused its discretion
by sanctioning him for knowingly and recklessly pursuing a
frivolous copyright infringement claim and litigating that
claim in bad faith. The record supports the district court’s
findings and imposition of sanctions. The parties agreed that
resolution of Thoda’s ownership is governed by the Indian
Copyright Act, 1957, and the Indian Supreme Court’s inter-
pretation of the act in Indian Performing Right Soc’y Ltd. v.
E. Indian Motion Pictures Ass’n and Others (“IPRS”), A.I.R.
1977 S.C. 1443. Unequivocally, the law of India vests a copy-
right in a movie score composed for compensation in the film
company; the composer has no copyright interest absent an
agreement to the contrary. Had Kornarens, a self-described
experienced copyright lawyer, made even a cursory investiga-
tion into the circumstances of Lahiri’s 21-year old composi-
tion of Thoda, he would have known Lahiri had no copyright
interest in music he composed for hire.
On appeal, Kornarens argues he reasonably relied on an
expert in Indian law, as well as his unsupported assertion that
Lahiri represented he owned the Thoda copyright. The district
court did not abuse its discretion in rejecting similar argu-
ments. The law of India is straightforward and the IPRS deci-
sion is in English. Indeed, there is nothing legally remarkable
3
After summary judgment was entered against Lahiri, defendants
quickly settled with Saregama.
LAHIRI v. UNIVERSAL MUSIC AND VIDEO 8135
or unique about applicable Indian law that would reasonably
require expert advice. Generally, a composer who creates a
film score for hire forfeits a copyright interest in his work.
See, e.g., 17 U.S.C § 101 (a work made for hire includes a
work specially ordered or commissioned for use as part of a
motion picture if the parties expressly agree in a signed, writ-
ten instrument that the work shall be considered a work made
for hire), § 201(b) (the employer or other person for whom the
work made for hire was prepared owns the copyright unless
the parties expressly agree otherwise in a signed, written
instrument); Warren v. Fox Family Worldwide, Inc., 328 F.3d
1136, 1140-43 (9th Cir. 2003) (composer of television series
music for hire did not own copyright in the music).
[2] Kornarens attempted to justify his untenable interpreta-
tion of Indian copyright law by misrepresenting the IPRS
decision: he cited the immaterial concurring opinion as the
Indian Supreme Court’s holding. He repeatedly misquoted
Gee Pee Films, Pvt. Ltd. v. Pratik Chowdhury and Others,
G.A. No. 2756 of 2001 and C.S. No. 356 of 2001, for the
proposition that a film producer does not have a copyright
interest in songs that it commissions. Gee Pee expressly
involved non-film music. Kornarens inserted the parenthetical
“(film company)” into a quotation from Gee Pee to support
his misrepresentation the case involved Indian film music.
The district court did not abuse its discretion in concluding
Kornarens’ misrepresentations of Indian law evidenced his
bad faith and recklessness in pursuing Lahiri’s copyright
claim.
[3] Kornarens now concedes his written submissions to the
district court contained “mistakes.” However, viewed in the
context of the history of this litigation, the court did not abuse
its discretion in finding that Kornarens acted recklessly and in
bad faith in pursuing a frivolous copyright claim for five
years. Kornarens’ amended complaint asserted a contrived
United States copyright claim created by registration of a 21-
year old composition after his Lanham Act and unfair compe-
8136 LAHIRI v. UNIVERSAL MUSIC AND VIDEO
tition claims were placed in jeopardy by the Supreme Court’s
grant of certiorari in Dastar. Lahiri composed Thoda for a
film produced in India, under an agreement with an Indian
film producer for financial compensation. Pursuit of a copy-
right claim without inquiring whether Lahiri composed Thoda
for hire would be reckless under the laws of either India or the
United States. The district court did not err in its factual find-
ings or abuse its discretion in concluding that Kornarens’
repeated misrepresentations of Indian copyright law clearly
evidenced his recklessness and bad faith.
[4] After the sanctions motion was filed and the district
court’s decision was impending, Kornarens attempted to
cause the judge’s recusal by retaining the judge’s former law
firm to defend him against the sanctions motion. The district
court’s consideration of this manipulative tactic as evidence
of bad faith was not an abuse of discretion. The district court
reasonably inferred that Kornarens’ intent was to have the
case assigned to a new judge who would be unfamiliar with
the protracted history of this litigation.4
Kornarens contends the initial denial of summary judgment
precludes imposition of sanctions because the decision
“placed [the district court’s] imprimatur of propriety” on
Lahiri’s copyright claim. The record strongly suggests other-
wise. The summary judgment denial was predicated on Kor-
narens’ misleading submission of the Lahiri-Saregama
settlement as purportedly recognizing Lahiri as the co-owner
of the copyright; the agreement only applied “ownership” to
a split of an anticipated recovery in this litigation. The record
demonstrates Kornarens misled the district court by use of a
settlement agreement that deceptively used ownership lan-
guage, but did not convey or recognize co-ownership of
Thoda. In any case, a court may revisit prior decisions in a
4
Over the five-year history of this litigation, three different judges of the
United States District Court for the Central District of California were
assigned to this case.
LAHIRI v. UNIVERSAL MUSIC AND VIDEO 8137
case and correct errors while the case is still pending. Chris-
tianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817
(1988). Similarly, Kornarens’ argument that he acted in good
faith reliance on the settlement agreement in his continued
pursuit of Lahiri’s copyright claim is frivolous, given the
restrictive language of a document Kornarens himself submit-
ted to the district court.
[5] Kornarens argues that no single instance of misconduct
cited by the district court justified the imposition of sanctions.
Kornarens ignores the record. The district court’s bad faith
finding was based on the cumulative effect of his litigation
conduct for more than five years. Clear and convincing evi-
dence supports the district court’s conclusion that Kornarens
acted recklessly and in bad faith and his conduct caused
unreasonably protracted and costly litigation over a frivolous
copyright claim. Accordingly, sanctions were not an abuse of
discretion.
IV
Kornarens challenges the reasonableness of the
$258,206.04 award. He suggests that if the imposition of
sanctions is upheld, the amount should not exceed
$21,310.26. However, the district court’s sanctions order
explains in detail its reduction of defendants’ claimed
$894,539.44 in attorneys’ fees and costs. The award is explic-
itly limited to excess costs and fees incurred in defending
against Lahiri’s copyright infringement claim, and excludes
litigation expenses for his dismissed Lanham Act and unfair
competition claims. The award therefore excludes all fees and
costs incurred before September 1, 2003.
[6] The district court used a traditional lodestar analysis of
defendants’ contemporaneous billing records. Because defen-
dants used single entries for tasks pertaining to both Saregama
and Lahiri’s consolidated copyright claims, the district court
apportioned only half of the billings to Lahiri. This was a con-
8138 LAHIRI v. UNIVERSAL MUSIC AND VIDEO
servative approach. The record reflects that Kornarens initi-
ated most of the litigation activity resulting in defendants’
excessive fees and costs. An apportioned percentage is not an
abuse of discretion because it would be impossible to deter-
mine with mathematical precision the fees and costs generated
only by Kornarens. The Traditional Cat Ass’n, Inc. v. Gil-
breath, 340 F.3d 829, 834-35 (9th Cir. 2003); Salstrom v.
Citicorp Credit Servs., Inc., 74 F.3d 183, 185 (9th Cir. 1996).
[7] The district court reviewed samples from the fee appli-
cation and calculated an 80% block billing rate. The district
court identified attorneys and paralegals who were primarily
responsible for block billing, and reduced 80% of their billa-
ble hours by 30%. This was permissible and not an abuse of
discretion. Welch v. Metro. Life Ins. Co., 480 F.3d 942, 948
(9th Cir. 2007) (citing California State Bar’s Committee on
Mandatory Fee Arbitration’s report that block billing may
increase time by 10 to 30%). The district court further
excluded fees incurred because of court-requested supplemen-
tal information and made an additional 10% across-the-board
reduction for excessive and redundant work. Moreno v. City
of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). This was
a reasoned exercise of discretion.
In reducing defendants’ recovery of costs by $82,978.68,
the district court carefully excluded inadequately documented
costs, as well as taxable costs not included in defendants’ bill
of costs. The significantly reduced award of recoverable costs
was reasonable and not an abuse of discretion.
V
CONCLUSION
[8] The district court’s authority to sanction attorneys
under § 1927 and its inherent disciplinary power must be
exercised with restraint and discretion. The record demon-
strates by clear and convincing evidence that Kornarens
LAHIRI v. UNIVERSAL MUSIC AND VIDEO 8139
engaged in a pattern of bad faith litigation conduct over an
extended time period. He pursued a meritless copyright
infringement claim that directly resulted in excess fees and
costs. Beyond question, Kornarens acted recklessly. The dis-
trict court did not abuse its discretion in awarding reasonable
and carefully considered attorneys’ fees and costs.
AFFIRMED.