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Plaintiff, 11-cv-7517 (JSR)

-v-
SYLVESTER STALLONE et al., MEMORANDUM ORDER
Defendants.
----------------------------------- x
JED S. RAKOFF, U.S.D.J.
Plaintiff Marcus Webb brought the instant copyright
infringement action against defendants Sylvester Stallone, his
co-writer David Callaham, and the various Hollywood entities
that produced and distributed The Expendables - Alta Vista
Productions, Inc., Alta Vista Productions, LLC, Double Life
Productions, Inc., Lions Gate Films, Inc., Lions Gate Home
Entertainment, Inc., Millennium Films, and Nu Image Films. After
defendant Callaham was dismissed from the action, see
Stipulation of Dismissal as to David E. Callaham, approved Apr.
26, 2012, this Court granted the remaining defendants' motion
for summary judgment on December 26, 2012, see Memorandum Order,
Dec. 26, 2012 ("12/26/2012 Mem. Order"). On appeal, the Second
Circuit affirmed this Court's decision on February 3, 2014. See
Webb v. Stallone, 555 F. App'x 31 (2d Cir. 2014) (summary
order).
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Defendants now move, pursuant to 17 U.S.C. Section 505, for
recovery of attorneys' fees and costs that they have incurred in
defending this action. For the following reasons, the Court
grants defendants' motion for costs, but denies their motion for
attorneys' fees.
Under Section 505, "the court in its discretion may allow
the recovery of full costs by or against any party other than
the United States or an officer thereof." 17 u.s.c. 505.
Section 505, however, does not specify who is entitled to the
award of costs. Therefore, the Court turns to the guidance
provided in Federal Rule of Civil Procedure 54(d) (1), which
indicates that, as a general matter, the Court should award
costs to the "prevailing party." Fed. R. Civ. P. 54(d) (1). Here,
defendants are clearly prevailing parties for purposes of Rule
54, and because plaintiff offers no reason to deviate from that
Rule's presumption, the Court awards to defendants their costs,
in an amount to be taxed by the Clerk of the Court.
Turning to the issue of attorneys' fees, "the court may
also award a reasonable attorney's fee to the prevailing party
as part of the costs." 17 U.S.C. 505. In determining whether
to award attorneys' fees, the Second Circuit has provided a
nonexclusive list of relevant factors, which includes: "(1) the
frivolousness of the non-prevailing party's claims or defenses;
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(2) the party's motivation; (3) whether the claims or defenses
were objectively unreasonable; and (4) compensation and
deterrence." Bryant v. Media Right Prods., Inc., 603 F.3d 135,
144 (2d Cir. 2010) (citing Fogerty v. Fantasy, Inc., 510 U.S.
517, 534 n.19 (1994)). Moreover, "[t]he third factor - objective
unreasonableness - should be given substantial weight." Id.
In this case, defendants have failed to demonstrate that
plaintiff's claims, while ultimately unsuccessful on the merits,
were objectively unreasonable. The Court first observes, as
other judges in this District have, that "[t]he mere fact that
defendants prevailed on summary judgment is not dispositive in
determining whether to award attorneys' fees." Muller v.
Twentieth Century Fox Film Corp., 08-cv-2550, 2011 WL 3678712,
at *l (S.D.N.Y. Aug. 22, 2011). Instead, after examining
plaintiff's litigation conduct, the Court finds that plaintiff
litigated his claims in good faith and pursued objectively
reasonable grounds for relief. For example, before litigating,
plaintiff investigated the similarities between the movie and
script at issue, and there were enough similarities at the
outset to make the suit's initiation reasonable. See, e.g.,
Declaration of Plaintiff Marcus Webb in Opposition to
Defendants' Motion for an Award of Costs and Attorney Fees, Mar.
25, 2014, 2. Then, after plaintiff was presented with evidence
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that defendants relied on the independent Barrow screenplay as
the basis for The Expendables, Stallone asserted that he had not
copied from the Barrow script. See Declaration of David Kohane
in Opposition to Defendants' Motion for an Award of Costs and
Attorney Fees, Mar. 25, 2014, Ex. A, at 163, 166, 172-73, 275-
76. Furthermore, Stallone admitted that he had relied on a
multitude of sources for The Expendables, which further
reinforced plaintiff's reasonable belief that he had a viable
claim. See 12/26/2012 Mem. Order, at 10. Even though none of
these facts and discrepancies was sufficient for this Court to
deny defendants' motion for summary judgment, plaintiff had
enough of a basis to reasonably initiate and continue litigating
this case. The Court therefore will not award to defendants' the
attorneys' fees that they incurred in defending this action.
Accordingly, the Court hereby grants defendants' motion for
costs, but denies their motion for attorneys' fees. The Clerk of
the Court is hereby directed to tax costs.
SO ORDERED.
Dated: New York, New York
June ~ l , 2014 J ~ . J .
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