United States District Court, E.D. Louisiana
PAUL BATISTE d/b/a ARTANG PUBLISHING, LLC, a Louisiana Limited Liability Company
RYAN LEWIS, BEN HAGGERTY, Professionally known as MACKLEMORE, Professionally and collectively known as MACKLEMORE AND RYAN LEWIS, Individuals, MACKLEMORE PUBLISHING, RYAN LEWIS PUBLISH, MACKLEMORE, LLC ALTERNATIVE DISTRIBUTION ALLIANCE, ANDREW JOSLYN, ALLEN STONE, ANDREW JOSLYN MUSIC, LLC, STICKY STONES PUBLISHING
REPORT AND RECOMMENDATION
WELLS ROBY UNITED STATES MAGISTRATE JUDGE
the Court is Defendants' Motion for Attorneys' Fees
(R. Doc. 145). The issue of attorneys' fees and costs was
referred to the undersigned, to submit proposed findings and
recommendations for disposition pursuant to Title 28 U.S.C.
§§ 636(b)(1)(B) and (C), 1915e (2), and 1915A, and
as applicable, Title 42 U.S.C. §§ 1997e (c)(1) and
(2). See R. Doc. 146. The motion is opposed. R. Doc.
149. The motion was heard on the briefs.
copyright infringement case was filed by Paul Batiste
(“Batiste”), a New Orleans jazz musician who is
the founding member and owner of Artang Publishing, LLC and
the Batiste Brothers Band. Id. at p. 2. Defendants
Ryan Lewis and Ben Haggerty are a famous hip-hop duo known as
Macklemore and Ryan Lewis, who have achieved international
success for their singles Thrift Shop and
Can't Hold Us. Id. Defendants have also
received several Grammy awards, including those for best new
artist, best album, and best rap performance, for their
single Thrift Shop. Id.
alleged that Defendants willfully infringed on his copyrights
by using unauthorized samples and copying elements of eleven
of Plaintiff's original songs in the composition of
Thrift Shop, Can't Hold Us, Need to
Know, Same Love, and Neon Cathedral.
Id. Plaintiff also sued several others credited with
writing the songs, as well as the publishing companies who
own the rights to the compositions. Id. Plaintiff
alleged, inter alia, that he was entitled to actual
damages and Defendants' profits in connection with the
infringed copy-righted songs. R. Doc. 40 at p. 13-22.
dealing with contentious discovery, Defendants filed a Motion
for Summary Judgment (R. Doc. 140), which the District Judge
subsequently granted in its entirety. Specifically, the Court
found that there was no evidence to suggest that Defendants
had factually copied any of Batiste's musical
compositions or sound recordings. R. Doc. 140. The Court
further held, in comparing the songs with recordings, that
Plaintiff failed to demonstrate “striking
similarity” or any instance of sampling with respect to
the twelve song pairings identified in his complaint. As
such, the Second Amended Complaint was dismissed with
prejudice. R. Doc. 144.
now seek fees and expenses they incurred and submit that such
relief is warranted because Plaintiff's claims were
objectively baseless and unreasonable from the outset; both
Plaintiff and his counsel engaged in egregious misconduct
including, among other things, Plaintiff failed to provide
even the most basic responses to Defendants' requests for
discovery, despite an Order from the undersigned; Plaintiff
failed to comply with an Order directing payment of
Defendants' attorneys' fees for discovery misconduct;
Plaintiff failed to personally appear for depositions that
Plaintiff's counsel noticed in Seattle, Washington; and
as Plaintiff submitted a fraudulent “expert
report” prepared in its entirety by Batiste. Defendants
contend that, as a prevailing party in this Copyright Act
case, the Court has the discretion to award them
attorneys' fees and costs pursuant to 28 U.S.C. §
1927, and therefore seek an award of $145, 594.50 and $3,
764.26 in reasonable attorneys' fees and costs, as well
as seeking an estimated $5, 000.00 to $10, 000.00 in
additional attorneys' fees and costs associated with this
motion and reply. R. Doc. 145-1.
opposes the motion contending that the award of
attorneys' fees is not automatic, but rather that it is
subject to the Court's discretion. R. Doc. 148. Plaintiff
contends that Defendants' request for attorneys' fees
is “severely misplaced” and constitutes a
collection of mischaracterizations and baseless claims.
Id. Plaintiff further contends that while the Court
dismissed his claim, there is no evidence to suggest that the
claim was frivolous or brought in bad faith. Id.
Albeit Plaintiff acknowledges that there currently is no case
in the Fifth Circuit that addresses the burden of proof
required to demonstrate “substantial similarity”
in a sound recording sampling case and copying claim.
setting forth the respective position of the parties, the
Court proceeds with its review of the matter. This Court, in
exercising its discretion to award attorneys' fees, is of
the opinion that Defendants' award of attorneys' fees
and costs associated are appropriate in this Copyright
infringement case for the reasons set forth in greater detail
Standard of Review
criteria to be applied in determining the proper amount of
fees to be awarded in the Fifth Circuit is articulated in
Johnson v. Georgia Highway Express, Inc., 488 F.2d
714 (5th Cir.1974). The Court notes that the Fifth Circuit
has applied the Johnson factors to copyright
infringement cases in previous instances. See,
e.g., 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.
Supreme Court has indicated that the “lodestar”
calculation is the “most useful starting point”
for determining the award of attorneys' fees. Hensley
v. Eckerhart, 461 U.S. 424, 433 (1983). The lodestar
equals “the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate.”
Id. The lodestar is presumed to yield a reasonable
fee. La. Power & Light Co. v. Kellstrom, 50 F.3d
319, 324 (5th Cir. 1995). After determining the lodestar, the
Court must then consider the applicability and weight of the
twelve factors set forth in Johnson, 488 F.2d at
717-19. The Court can make upward or downward
adjustments to the lodestar figure if the Johnson
factors warrant such modifications. See Watkins v.
Fordice, 7 F.3d 453, 457 (5th Cir. 1993). However, the
lodestar should be modified only in exceptional cases.
the calculation of the lodestar, the burden then shifts to
the party opposing the fee to contest the reasonableness of
the hourly rate requested or the reasonableness of the hours
expended “by affidavit or brief with sufficient
specificity to give fee applicants notice” of the
objections. Rode v. Dellarciprete, 892 F.2d 1177,
1183 (3d Cir. 1990).
is no dispute as to whether Defendants are the prevailing
parties. The sole item of issue regarding Defendants'
entitlement to the award of reasonable attorneys' fees,
at least according to Plaintiff, is that there is no proof
that his claim was frivolous and objectively unreasonable.
any award of attorneys' fees is ‘the goal of
vindicating the overriding purpose of the Copyright Act: to
encourage the production of original literary, artistic, and
musical expression for the public good.'” See
Lotus Dev. Corp. v. Borland Int'l, Inc., 140 F.3d
70, 73 (1st Cir.1998). Plaintiffs' argument as to
Defendants' not meeting their threshold burden showing as
to attorneys' fees in a Copyright Act case falls flat
where, as in here, a “showing of frivolity or bad faith
is not required; rather, the prevailing party need only show
that its opponent's copyright claims or defenses were
‘objectively weak.'” Latin Am. Music Co.
v. Am. Soc'y of Composers Authors & Publishers,
629 F.3d 262, 263 (1st Cir.2010) (quoting Garcia-Goyco v.
Law Envtl. Consultants, Inc., 428 F.3d 14, 20 (1st
considering the objective weakness in Plaintiff's claims,
the Court finds the following procedural history instructive.
The series of Plaintiff mishaps and failures in this case
initially began with Defendants' filing of a motion to
dismiss, which Plaintiff responded to by filing a motion to
amend his complaint. R. Docs. 12 & 19. The Defendants
reasserted their arguments from their motion to dismiss, and
Plaintiff moved for leave to file its Second Amended
Complaint, which the undersigned Magistrate Judge ultimately
granted. R. Docs. 25, 34, & 39. At some point thereafter,
District Judge Martin L. C. Feldman denied Defendants'
subsequently filed Second Motion to Dismiss Second Amended
Complaint. R. Doc. 58.
hotly contested discovery matters in this case, but in every
dispute Plaintiff's position did not yield success.
See, e.g., R. Doc. 89. The Court even had to award
reasonable attorneys' fees to Defendants on their Motion
to Compel (R. Doc. 81) because Plaintiff lacked a good faith
basis for his refusal to produce required documents. R. Docs.
129 & 145-1, p. 5. The award was $3, 554.00, which
remains unpaid by either counsel or his client. Id.
Court held a discovery conference to address Plaintiff's
request to suspend and cancel the deposition of its expert.
R. Doc. 97. After consideration of the issue, the Court
denied Plaintiff's request and ordered Mr. Archie Milton,
Plaintiff's expert, to answer questions regarding
Plaintiff's personal contributions to the preparation of
his own proffered expert report. Id. Mr.
Milton's testimony revealed that the expert report was in
fact largely prepared by Plaintiff himself and not the expert
as previously represented by Plaintiff and his counsel.
result of this testimony, Defendants filed a motion to
exclude Plaintiff's expert's deposition, which
District Judge Feldman subsequently granted. R. Doc. 125.
Interestingly, and perhaps most daringly, Plaintiff decided
to take the contents of Mr. Milton's report, as they were
substantially prepared by him, and attempted to submit it in
his own name. See R. Doc. 135-5. A few weeks later,
on April 29, 2019, the Court dismissed Plaintiff's
lawsuit by granting a summary judgment noting that
Plaintiff's copyright infringement claim presented no
probative evidence to demonstrate that Defendants factually
copied any of the music compositions or sound as a matter of
law. R. Doc. 144. These case docket filings, hearings, and
orders demonstrate the frivolity in Plaintiff's
allegations, and, as such, this Court finds that the
Batiste's claims are, and continue to be, objectively
weak. Accordingly, it is recommended that an award of
attorneys' fees is appropriate.