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Philpot v. L.M. Communs. II of S.C.

United States District Court for the Eastern District of Kentucky, Central Division

May 15, 2020, Decided; May 15, 2020, Filed

Civil Action No. 5:17-CV-173-CHB



This matter is before the Court on remand from the Sixth Circuit on the issue of attorney's fees and costs. Before the Court is Plaintiff Larry G. Philpot's ("Philpot") Bill of Costs [R. 115], Defendant LM Communications II of South Carolina, Inc.'s ("LM Communications") Motion for an Order Reaffirming the Court's Order Denying Attorney's Fees [R. 116], and Plaintiff's Renewed Motion for Attorneys' Fees and Costs [R. 119]. The parties have filed numerous objections, responses, and replies [R. 118; 123-27], and thus this matter is ripe for decision. For the reasons stated herein, Plaintiff's Motion is denied, Defendant's Motion is granted, and Defendant's Objection to a Portion of Plaintiff's Bill of Costs is overruled.

I. Attorney's [*2]  Fees Under 17 U.S.C. § 505

Section 505 of the Copyright Act provides that "the court in its discretion may . . . award a reasonable attorney's fee to the prevailing party as part of the costs." 17 U.S.C. § 505 (emphasis added). The award of attorney's fees is not mandatory, but the "grant of [attorney's] fees and costs is the rule rather than the exception and they should be awarded routinely." Bridgeport Music, Inc. v. WB Music Corp., 520 F.3d 588, 592 (6th Cir. 2008). However, "a district court may not award attorney's fees as a matter of course; rather, a court must make a more particularized, case-by-case assessment." Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct. 1979, 1985, 195 L. Ed. 2d 368 (2016). The decision to grant attorney's fees ultimately remains within the trial court's discretion, and Section 505 grants courts "wide latitude to award attorney's fees based on the totality of circumstances in a case." Kirtsaeng, 136 S. Ct. at 1985; Fogerty v. Fantasy, Inc., 510 U.S. 517, 534, 114 S. Ct. 1023, 127 L. Ed. 2d 455 (1994). "There is no precise rule or formula for making these determinations, but instead equitable discretion should be exercised on [the Fogerty factors]." Fogerty, 510 U.S. at 534 (internal citations omitted); see also Kirtsaeng, 136 S. Ct. at 1985. The Court should use these factors "so long as such factors are faithful to the purposes of the Copyright Act." Fogerty, 510 U.S. at 527, 534 n.19. This includes "enriching the general public through access to creative works," and "promot[ing] the Progress of Science and useful Arts." Id. at 527.

Philpot is a prevailing party under [*3]  section 505 of the Copyright Act, as he prevailed on his copyright infringement claim. Philpot v. LM Commc'ns II of S.C., 776 F. App'x 906, 907 (6th Cir. 2019); Bridgeport Music, Inc. v. Diamond Time, Ltd., 371 F.3d 883, 893 (6th Cir. 2004) ("[W]hen a [party] succeeds in having summary judgment entered in its favor on the copyright infringement claims . . . that [party] can only be described as having 'prevailed.'"). Therefore, it is the Court's duty to determine whether attorney's fees are warranted in this action. There are several nonexclusive factors the Supreme Court has endorsed that inform a court's fee-shifting decisions, including: "frivolousness, motivation, objective unreasonableness[,] and the need in particular circumstances to advance considerations of compensation and deterrence." Fogerty, 510 U.S. at 534 n.19; Coles v. Wonder, 283 F.3d 798, 804 (6th Cir. 2002). The Supreme Court has held that "substantial weight" should be given to the objective reasonableness of the losing party's positions. Kirtsaeng, 136 S. Ct. at 1989. That factor, however, is not controlling, and district courts continue to retain discretion to "take into account a range of considerations[.]" Id. at 1988. For example, a party's litigation misconduct can warrant fee-shifting regardless of how reasonable its positions were. Id. at 1988-89; see also Viva Video, Inc. v. Cabrera, 9 F. App'x. 77, 80 (2d Cir. 2001); Bridgeport Music, Inc. v. WB Music Corp., 520 F.3d 588, 593-595 (6th Cir. 2008).

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2020 U.S. Dist. LEXIS 85901 *


Prior History: Philpot v. LM Communs. II of S.C., Inc., 2018 U.S. Dist. LEXIS 113927 (E.D. Ky., July 10, 2018)


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