United States District Court, S.D. Indiana, Indianapolis Division
RICHARD N. BELL, Plaintiff,
DAVID N. POWELL, and MIDWEST REGIONAL NETWORK FOR INTERVENTION WITH SEX OFFENDERS, Defendants.
ORDER ON DEFENDANTS' MOTIONS FOR ATTORNEY FEES
AND BILL OF COSTS
WALTON PRATT, JUDGE
matter is before the Court on Motions for Attorney Fees and
Bill of Costs filed by Defendants David N. Powell
(“Powell”) and Midwest Regional Network for
Intervention with Sex Offenders (“MRNISO”)
(Filing No. 102; Filing No. 103; Filing
No. 104; Filing No. 109). The Defendants filed
their Motions pursuant to 17 U.S.C. § 505 of the
Copyright Act after they became the “prevailing
party” in this Copyright Act case. For the following
reasons, the Court grants MRNISO's
Motions and awards it $76, 200.05 in fees and costs.
September 18, 2016, Plaintiff Richard N. Bell
(“Bell”), an attorney and professional
photographer, filed a Complaint against Powell and MRNISO,
asserting a claim pursuant to the Federal Copyright Act, 17
U.S.C. §101 et seq., for copyright infringement
of a photograph of the Indianapolis, Indiana skyline taken by
Bell. He requested damages and declaratory and injunctive
relief (Filing No. 1). Powell filed a motion to
dismiss, which was granted, and Bell was permitted to amend
his Complaint (Filing No. 39). Powell filed a second
motion to dismiss, which was denied (Filing No. 63).
Bell, Powell, and MRNISO then filed cross-motions for summary
judgment. Summary judgment was granted in favor of Powell
based on Eleventh Amendment immunity, and it was granted in
favor of MRNISO based on the “fair use doctrine.”
(Filing No. 99.) With Bell's claims being
dismissed on the cross-motions for summary judgment, the
Court entered Final Judgment in favor of Powell and MRNISO
and against Bell on October 11, 2018 (Filing No.
October 25, 2018, Powell filed his Motion for Attorney Fees
pursuant to 17 U.S.C. § 505 (Filing No. 102).
That same day, MRNISO filed its Motion to Join in
Powell's Motion for Attorney Fees and Costs (Filing
No. 103), as well as its Bill of Costs (Filing No.
104). After MRNISO filed its Motions, Bell requested
additional documents and statements regarding MRNISO's
request for fees. MRNISO agreed to provide supplemental
evidence, statements, and authority in an amended motion.
Thereafter, MRNISO filed its Amended Motion to Join in
Powell's Motion for Attorney Fees and Costs (Filing
No. 109). As the prevailing defendants in a copyright
action, Powell and MRNISO seek their costs and attorney fees
pursuant to 17 U.S.C. § 505.
17 U.S.C. § 505, in any copyright civil action, the
district court in its discretion may allow the recovery of
all costs of litigation, including an award of a reasonable
attorney's fee as part of those costs, to the prevailing
party. A party prevails “when it obtains a
‘material alteration of the legal relationship of the
parties.'” Hyperquest, Inc. v. N'Site
Solutions, Inc., 632 F.3d 377, 387 (7th Cir. 2011)
(quoting Riviera Distributors, Inc. v. Jones, 517
F.3d 926, 928 (7th Cir. 2008)). “Defendants who defeat
a copyright infringement action are entitled to a strong
presumption in favor of a grant of fees.”
Hyperquest, 632 F.3d at 387. “When the
prevailing party is the defendant, who by definition receives
not a small award but no award, the presumption in favor of
awarding fees is very strong.” Assessment Techs. of
WI, LLC v. Wire Data, Inc., 361 F.3d 434, 437 (7th Cir.
2004); see also FM Indus. v. Citicorp Credit Servs.,
614 F.3d 335, 339 (7th Cir. 2010) (“a defendant that
prevails in copyright litigation is presumptively entitled to
fees under § 505”).
United States Supreme Court noted that in determining whether
to exercise its discretion to award costs and fees in a
copyright case, district courts should look to a number of
nonexclusive factors including: (1) the frivolousness of the
action; (2) the losing party's motivation for filing or
contesting the action; (3) the objective unreasonableness of
the action; and (4) the need to “advance considerations
of compensation and deterrence.” Fogerty v.
Fantasy, Inc., 510 U.S. 517, 535 n.19 (1994).
filed his Motion for Attorney Fees, which was followed by
MRNISO's Motion to Join in Powell's Motion for
Attorney Fees and Costs, MRNISO's Bill of Costs, and
MRNISO's Amended Motion to Join in Powell's Motion
for Attorney Fees and Costs. The Court will first address
Powell's Motion and then turn to MRNISO's filings.
Powell's Motion for Attorney Fees
prevailing against Bell on summary judgment, Powell filed his
Motion for Attorney Fees, relying on the strong presumption
of awarding fees and costs to prevailing defendants in
copyright infringement cases and also discussing the
Fogerty factors' application to this case. Soon
thereafter, Bell filed a “Report of Settlement Between
Powell and Bell” and asserted that he and Powell had
reached a proposed settlement that was “being reviewed
by Powell and the State of Indiana.” (Filing No.
110 at 1.) Bell asked the Court to stay all deadlines
regarding Powell's Motion to allow the parties to
finalize their settlement. Powell did not file any response
or opposition to Bell's “Report of Settlement
Between Powell and Bell” or the requested stay. The
Court entered an Order “vacating all deadlines as
between Bell and Powell and enter[ed] a stay as it relates to
Powell and Bell only.” (Filing No. 112 at 1.)
light of Powell and Bell's apparent negotiated settlement
of the claim for fees and costs, the Court now lifts
the stay and denies as moot Powell's Motion for
Attorney Fees (Filing No. 102). The denial of the
Motion is without prejudice to refiling the motion in the
event the parties are unable to finalize their settlement.