Broadcast Music, Inc. v. Xanthas, Inc.

685 F. Supp. 134, 1988 U.S. Dist. LEXIS 15743, 1988 WL 40037
CourtDistrict Court, E.D. Louisiana
DecidedFebruary 19, 1988
DocketCiv. A. No. 86-5045
StatusPublished

This text of 685 F. Supp. 134 (Broadcast Music, Inc. v. Xanthas, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Broadcast Music, Inc. v. Xanthas, Inc., 685 F. Supp. 134, 1988 U.S. Dist. LEXIS 15743, 1988 WL 40037 (E.D. La. 1988).

Opinion

ON AWARD OF ATTORNEYS’ FEES

ROBERT F. COLLINS, District Judge.

Plaintiff, Broadcast Music, Inc. (BMI), has moved the Court for an award of attorneys’ fees in the above captioned case. The action came on for trial before the Court on October 22, 1987 and in Findings of Facts and Conclusions of Law, the Court found defendant, Xanthas, Inc., liable for one hundred eighty-two (182) counts of copyright infringement. The Court also found that reasonable attorneys’ fees and costs incurred by plaintiff should be borne [135]*135by defendant. The Court now makes the following Supplemental Findings of Fact and Conclusions of Law on this issue.

Findings of Fact

1. 17 U.S.C. § 505 gives the Court discretion to allow full costs and attorney’s fees to the prevailing party in a copyright infringement action. “Although attorney’s fees [in a copyright infringement action] are awarded in the trial court’s discretion, they are the rule rather than the exception and should be awarded routinely.” Micromanipulator Co., Inc. v. Bough, 779 F.2d 255, 259 (5th Cir.1985), citing Engel v. Teleprompter Corp., 732 F.2d 1238, 1241 (5th Cir.1984).

2. The criteria to be applied in determining the proper amount of fees to be awarded are articulated for this Circuit in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). Georgia Highway has been applied to copyright infringement cases in this Circuit. See Micromanipulator Co., Inc., 779 F.2d 255.

3. Under Johnson, there are twelve factors which must be considered by a court in awarding statutorily-authorized attorney’s fees: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee [for similar work in the community]; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.

Time and Labor Required

4.Pursuant to the affidavit of Jonathan Zavin and the daily time work sheets attached thereto as Exhibit # 1, New York (lead) counsel and paralegals expended the following plaintiffs time and labor:

Partners’ time
Jonathan Zavin — 14.9 hours
Richard Wasserman — 39.3 hours
Associates’ time
Scott Martin — 25.1 hours
Marya Lenn Yee — 258.3 hours
Paralegals’ time
Aaron Morrill — 40.5 hours
George Scott — 46 hours
Michelle Johnson — 15 hours
Jaime Friedman — 11 hours

5. Pursuant to the Zavin affidavit and the time sheets submitted thereto as Exhibit 2, plaintiff’s New Orleans (local) counsel expended the following time:

Kantrow, Spaht, Weaver & Blitzer Richard F. Zimmerman — .5 hour
Jonathan C. Benda — 6.25 hours
O’Neil, Eichin, Miller & Breckinridge Earl S. Eichin — 21,25 hours
James R. Swanson — .5 hour

6. The Court finds that the hours billed by plaintiff’s New York counsel and paralegals are somewhat excessive. The Court also finds that the sixty-seven (67) hours billed for one deposition are somewhat excessive.

7. The time and labor expended by plaintiff’s New Orleans counsel are reasonable.

8. Because of the different responsibilities of plaintiff’s New Orleans (local) counsel and plaintiff’s New York (lead) counsel, work performed by local and lead counsel was not duplicative.

Novelty and Difficulty of the Case

9. This case was not novel.

10. The copyright infringement area of the law is a specialized area of the law.

11. Defendants made this case more difficult than normal because of their failure to answer certain interrogatories and failure to stipulate to certain facts until the trial.

12. Defendants made this case more difficult than normal because of their unreasonable contention that they were innocent infringers of the Copyright Act.

[136]*136 Requisite Skill

13. Based upon counsels’ work product, as shown by plaintiffs motion for summary judgment and supplemental memorandum, and based upon counsels’ preparation and general ability before this Court at the July 31,1987 hearing on damages, all counsel have shown the requisite skill to perform the legal service properly.

Preclusion of Other Employment

14. Plaintiff’s counsel have not been precluded from other employment. Customary Fee

15. The typical and customary fee for similar work in the New York community for Copyright Act infringement work for counsel and paralegals are:

Partners — $170.00 per hour
Associates — $110.00 per hour
Paralegals — $55.00 per hour

16. Plaintiff’s New York counsel and paralegals’ usual billing rates are:

Jonathan Zavin — $170 per hour
Richard Wasserman — $170.00 per hour
Scott Martin — $110.00 per hour
Mary Lenn Yee — $110.00 per hour
Aaron Morrill — $55.00 per hour
George Scott — $55.00 per hour
Michelle Johnson — $55.00 per hour

17. The typical and customary fee for local counsel work in the Copyright Act area in the New Orleans community is $135.00 per hour for partners and $75.00 per hour for associates.

18. Plaintiff’s New Orleans counsel’s usual billing rates are:

Earl Eichen — $135.00 per hour
Richard Zimmerman — $100.00 per hour
Jonathan Benda — $75.00 per hour
James Swanson — $70.00 per hour

19. The fees charged by plaintiffs New York counsel and paralegals and plaintiff’s New Orleans counsel are all customary and reasonable.

Fixed or Contingent Fees

20.

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Bluebook (online)
685 F. Supp. 134, 1988 U.S. Dist. LEXIS 15743, 1988 WL 40037, Counsel Stack Legal Research, https://law.counselstack.com/opinion/broadcast-music-inc-v-xanthas-inc-laed-1988.