1UNITED STATES DISTRICT COURT

(ECF)

SOUTHERN DISTRICT OF NEW YORK- - - - - - - - - - - - - - - - - -:WAVES AUDIO, LTD., WAVES, INC.,:09 Civ. 2282 (JCF):09 Civ. 2285 (JCF)Plaintiffs,:: MEMORANDUM- against -: AND ORDER:RECKLESS MUSIC, LLC, d/b/a Skyline:Recording Studio and John Does:1-5,::Defendants.:- - - - - - - - - - - - - - - - - -:JAMES C. FRANCIS IVUNITED STATES MAGISTRATE JUDGEThis is a copyright infringement action concerning audiosoftware designed for use in recording studios. Following a jurytrial, the defendant, Reckless Music, LLC, doing business asSkyline Recording Studio (“Skyline”), was found liable forinfringing two versions of copyrighted software created by theplaintiffs, Waves Audio, Ltd., and Waves, Inc. (collectively“Waves”). Waves now moves for an award of attorneys’ fees andcosts pursuant to the Copyright Act of 1976, 17 U.S.C. § 505. Forthe reasons that follow, the motion is denied.BackgroundWaves creates and markets software used by studio engineersand others for purposes of sound recording. In order to police itscopyrights, Waves conducts investigations in which one of itsemployees visits recording studios posing as someone interested incontracting for services offered by the studio. In the process ofdiscussing the services available, the representative attempts todetermine if the studio is utilizing Waves software without a

2proper license.In January 2007, Waves representative Tomer Elbaz, acting inan undercover capacity, visited Skyline along with an associate.They spoke with “Steve,” who was ultimately identified as SteveGueting, and the associate surreptitiously videotaped the meeting.During the discussion, Mr. Gueting stated that he had two Wavessoftware packages available for use in recording, but heacknowledged that they were “cracked,” or unauthorized, versions.Armed with this evidence, Waves initially sent a demand letterto Skyline, who responded that Mr. Gueting was an independentengineer and was not under the studio’s control. Unsatisfied,Waves commenced an action in this Court for copyright infringement.After the completion of discovery and determination of dispositivemotions, the case proceeded to trial before a jury.At trial, Mr. Elbaz testified about the investigation, and thevideotape of the visit to the studio was introduced as evidence.Jonathan Mover, the principal of Skyline, testified that musicstudios, including Skyline, rent space for recording sessions.According to Mr. Mover, Skyline contracts with engineers whoprovide technical services to the recording artists and who oftensupply their own hardware and software. According to Mr. Mover,Mr. Gueting was such an independent contractor, and Mr. Mover hadno knowledge that he was using infringing software. When alertedto Mr. Gueting’s conduct, Mr. Mover ceased doing business with himand banned him from the studio.After the jury had been charged and began deliberating, it

3sent a note requesting to hear again the instructions with respectto vicarious and contributory infringement. Thereafter, itreturned a verdict in favor of Waves with respect to each of thetwo versions of the software at issue. In both instances, however,it found that the defendant’s infringement was not willful. Thejury awarded statutory damages of $15,000.00 on each of the twoacts of infringement, for a total of $30,000.00.Waves subsequently filed the instant motion.DiscussionThe Copyright Act provides that “the court may . . . award areasonable attorney’s fee to the prevailing party.” 17 U.S.C. §505. The standard for awarding fees is evenhanded: it is the samefor prevailing plaintiffs as for prevailing defendants. Fogerty v.Fantasy, Inc., 510 U.S. 517, 534 (1994); Matthew Bender & Co. v.West Publishing Co., 240 F.3d 116, 121 (2d Cir. 2001); BriarpatchLimited, L.P. v. Geisler Roberdeau, Inc., No. 99 Civ. 9623, 2009 WL4276966, at *4 (S.D.N.Y. Nov. 30, 2009); Crown Awards, Inc. v.Discount Trophy & Co., 564 F. Supp. 2d 290, 294 (S.D.N.Y. 2008);Nicholls v. Tufenkian Import/Export Ventures, Inc., No. 04 Civ.2110, 2005 WL 1949487, at *2 (S.D.N.Y. Aug. 11, 2005). At the sametime, the shifting of fees to the prevailing party is notautomatic, but is a determination committed to the equitablediscretion of the court. Fogerty, 510 U.S. at 534; Matthew Bender,240 F.3d at 121. In Fogerty, the Supreme Court identified severalnonexclusive factors that courts may consider, including“‘frivolousness, motivation, objective unreasonableness (both in