Velasquez v. 2048 Partners LLC

• Court: District Court, N.D. California
• Decided: June 5, 2020
• Docket: 3:18-cv-06184
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOSE MEZA VELASQUEZ, Case No. 18-cv-06184-JD

8 Plaintiff, ORDER RE FEES AND COSTS v. 9 Re: Dkt. No. 77 10 2048 PARTNERS, LLC, et al., Defendants. 11

12 Defendants seek attorney’s fees and costs under the Copyright Act after the Court 13 dismissed plaintiff’s claim alleging a violation of the Visual Artists Rights Act, 17 U.S.C. § 106A 14 (“VARA”). Dkt. No. 77. The parties’ familiarity with the record is assumed. The request is 15 denied. 16 VARA is a section of the Copyright Act, and so the Court “in its discretion may allow the 17 recovery of full costs by or against any party.” 17 U.S.C. § 505. “Full costs” include “a 18 reasonable attorney’s fee to the prevailing party.” Id. 19 In exercising its discretion, the Court may consider a non-exclusive list of factors such as 20 “frivolousness, motivation, objective unreasonableness (both in the factual and in the legal 21 components of the case) and the need in particular circumstances to advance considerations of 22 compensation and deterrence . . . so long as such factors are faithful to the purposes of the 23 Copyright Act.” Shame on You Prods., Inc. v. Banks, 893 F.3d 661, 665-66 (9th Cir. 2018) 24 (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994)). The reasonableness of the 25 losing party’s “litigating position” is given substantial weight, but does not displace other relevant 26 factors. Id. at 666. The “mere fact that [a party] lost cannot establish his objective 27 unreasonability.” Seltzer v. Green Day, Inc., 725 F.3d 1170, 1181 (9th Cir. 2013); see also Shame 1 claim is objectively unreasonable when the party asserting it “should have known from the outset 2 that its chances of success in this case were slim to none.” SOFA Entertainment, Inc. v. Dodger 3 Prods., Inc., 709 F.3d 1273, 1280 (9th Cir. 2013). 4 While it is certainly true that the VARA claim was dismissed, the Court cannot say that the 5 claim was so unreasonable from the get-go that defendants should recover their fees. The VARA 6 claim required two rounds of motions to adjudicate. See Dkt. Nos. 57, 74. It turned on the 7 element of removability, which has little development in the case law and entailed research by 8 plaintiff into events going back several decades in time. Plaintiff ultimately could not plausibly 9 allege the requisite facts with respect to removability, but that does not mean the VARA claim was 10 an empty shell ab initio. 11 This is also not a situation where defendants achieved total victory. The Court declined to 12 consider the California state law claims under 28 U.S.C. § 1367(c)(3) after dismissing the VARA 13 count, which was the sole basis of federal jurisdiction. Dkt. No. 74. The Court expressly noted 14 that plaintiff was free to pursue these claims in state court. Id. The state law claims comprised 15 most of the amended complaint, and included a claim under the California Art Preservation Act, 16 Cal. Civil Code § 987. Plaintiff may not have been able to keep his case in this Court, but 17 defendants hardly walked away without any possibility of further litigation over the mural. 18 None of the other factors weigh in defendants’ favor. There is no persuasive evidence that 19 plaintiff brought the VARA claim, or the case generally, for an improper motive. To the contrary, 20 plaintiff alleged -- without meaningful dispute by defendants -- that he was acting as the artist who 21 painted a mural with significant community value. This was not an action by a copyright troll or 22 pirate. 23 For similar reasons, considerations of copyright compensation or deterrence also would not 24 be served by awarding fees. The Copyright Act serves to “encourage the production of original 25 literary, artistic, and musical expression for the good of the public.” SOFA, 709 F.3d at 1280 26 (quoting Fogerty, 510 U.S. at 524). Penalizing an artist such as plaintiff for attempting to 27 vindicate his good-faith belief in his visual art rights would subvert, and not serve, that statutory 1 Consequently, the motion for fees and costs is denied. 2 IT IS SO ORDERED. 3 Dated: June 5, 2020 4 5 JAMES JPONATO 6 United fftates District Judge 7 8 9 10 11 12

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