BRIAN LONG and MONA LONG, Plaintiffs, v. PATRICK BALLANTINE, PARKS GRIFFIN, BALLANTINE FOR NC SENATE, DAVID BENFORD and ALEXANDER JOHNSON, Defendants.

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1 BRIAN LONG and MONA LONG, Plaintiffs, v. PATRICK BALLANTINE, PARKS GRIFFIN, BALLANTINE FOR NC SENATE, DAVID BENFORD and ALEXANDER JOHNSON, Defendants. UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA, SOUTHERN DIVISION 1998 U.S. Dist. LEXIS 7813 March 24, 1998, Decided March 25, 1998, Filed OPINION ORDER This matter is before the court on plaintiffs' motion for costs and attorneys' fees and defendants' renewed motion for judgment as a matter of law. Both motions have been fully briefed and are ripe for decision. I. BACKGROUND Plaintiffs are freelance photographers who filed this action upon discovery that a photograph that they had taken of Wilmington Mayor Donald Betz (Betz) for use by Wilmington Magazine was featured in a campaign advertisement for Patrick Ballantine's (Ballantine) race against Betz for the North Carolina Senate. Plaintiffs sued for copyright infringement pursuant to 17 U.S.C. 101 and unfairtrade practices pursuant to 15 U.S.C and N.C. Gen. Stat The case was tried during this court's 20 October 1997 session. The court dismissed the unfair trade practices claims and the copyright claim was submitted to the jury. On 23 October 1997, the jury returned a verdict on the copyright claim in favor of plaintiffs and [*3] awarded them $ II. MOTION FOR COSTS AND ATTORNEYS' FEES Plaintiffs assert that the court should award them reasonable costs and attorneys' fees pursuant to 17 U.S.C Defendants disagree. Section 505 states: In any civil action under this title, 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. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs. 17 U.S.C The standard for determining the propriety and amount of attorneys' fees and costs under this statute was established by the United States Court of Appeals for the Fourth Circuit in Rosciszewski v. Arete Associates Inc., 1 F.3d 225 (4th Cir. 1993). Using Rosciszewskias an opportunity to address the standard a district court should apply in exercising its discretion to award costs and fees under 505, the court wrote [a] district court should consider, and make findings with respect to, the following factors. First, the district court [*4] should evaluate the motivation of the parties. While a finding of willful infringement or bad faith on the part of the opposing party properly may be considered by the district court, the presence or absence of such motivation is not necessarily dispositive. Second, the district court should weigh the objective reasonableness of the legal and factual positions advanced. The court may consider, for example, whether the positions advanced by the parties were frivolous, on the one hand, or well-grounded in law and fact, on the other. Third, the court should consider the need in particular circumstances to advance considerations of compensation and deterrence. In evaluating this factor, the court may find relevant, among other circumstances, the

2 ability of the non-prevailing party to fund an award. Finally, these enumerated factors are not intended as an exhaustive list; the district court may also weigh anyother relevant factors presented. Id. at 234 (internal citations omitted). The court will address each of these factors in turn. A. Motivation of the Parties Defendants argue that there is no finding of willful infringement or bad faith in this case and [*5] that, without willful infringement, there was no bad faith motivation by defendants in the use of the photo. They suggest that the lack of bad faith militates against an award of costs and fees. However, the Rosciszewski court declined to condition an award of fees and costs under 505 to a prevailing defendant upon a finding that the plaintiff pursued the copyright litigation in bad faith. "The statute imposes no such requirement, instead leaving the award of fees to the sound discretion of the trial court." Rosciszewski, 1 F.3d at While there is no clear showing of bad faith or willful infringement, plaintiffs argue that defendants' pattern of conduct suggests improper motivations and a disregard for plaintiffs' copyright. The evidence established by plaintiffs at trial made it clear that defendants copied plaintiffs' copyrighted photograph without permission and used it in a political ad. Further, the evidence established that defendants continued to run the ad using the photograph despite the copyright notice in the Wilmington Magazine, the objections of the magazine's publisher and plaintiffs, and a television news story about the use of the [*6] photo. Such activity casts doubt upon defendants' motivations and weighs in favor of an award under 505. The court has no concern about plaintiffs' motivations for the instigation of this suit. It is clear that plaintiffs brought this action to enforce the copyright laws and to protect their work. This militates in favor of an award under 505. B. Positions Advanced by the Parties Defendants argue that their use of plaintiffs' photograph was "fair use" because defendant Ballantine was a political candidate campaigning for office and the photo was not used in the commercial context. Plaintiffs responded that the fair use defense was inapplicable to these facts, as defendants never commented or criticized the work and destroyed any market for it through improper use. Specifically, plaintiffs asserted that the political use claimed by defendants was not contemplated by the statute. 17 U.S.C Case law relating to theapplicability of the fair use defense makes it clear that to some courts, the statutory list of fair uses in not exclusive. National Rifle Ass'n v. Handgun Control Federation, 15 F.3d 559 (6th Cir. 1994). Further, [*7] there is case law suggesting that the scope of fair use is expanded when the use relates to an issue of public concern. Id.; Hustler Magazine, 606 F. Supp (C.D.Cal. 1985); Keep Thomson Governor Committee v. Citizens for Gallen Committee, 457 F. Supp. 957 (D.N.H. 1978). Based upon this precedent, the court finds that defendants' arguments concerning fair use were objectively reasonable. The court further finds that plaintiffs' arguments against the application of the doctrine were equally appropriate. The precedent cited by defendants was not controlling upon this court. Plaintiffs argued for a limited and strict statutory application. Both sides presented objectively reasonable arguments relating to the facts and law during the course of this litigation. This factor weighs neither in favor of nor against an award under 505. C. Compensation and Deterrence Defendants argue that there is no need for compensation and deterrence in this case becauseof the political context involved. They assert that the court should not seek "to deter that which has been long relegated to the past." (Defs' Mem. in Oppn. to Plfs' Mot. for Costs and Fees at [*8] 9). They further contend that plaintiff Brian Long is not concerned about repeat conduct by defendants. Finally, they claim that they are not wealthy individuals or organizations such that a large fee award would be punitive and could chill legitimate First Amendment political activities in the future. Plaintiffs respond that defendants have demonstrated a cavalier attitude toward the copyright laws that must be curtailed. They assert that the verdict of the jury alone will not deter infringement because of the relatively low dollar amount awarded. They advocate the imposition of a costs and fee award to compensate themselves and to encourage others to assert their rights under the copyright laws and deter infringement. The primary objective of the Copyright Act is to encourage the production of original literary, artistic and musical expression for the good of the public. Fogerty v. Fantasy, Inc., 510 U.S. 517, 127 L. Ed. 2d 455, 114 S. Ct (1994). A

3 copyright serves as the holder'sright to prohibit the copying of his or her intellectual invention. Superior Form Builders, Inc. v. Dan Chase Taxidermy Supply Co., Inc., 74 F.3d 488, 492 (4th [*9] Cir.), cert. denied, 519 U.S. 809, 136 L. Ed. 2d 16, 117 S. Ct. 53 (1996). Attorneys' fees and costs are awarded to encourage the assertion of colorable copyright claims, as well as to deter infringement and compensate plaintiffs. Video Views, Inc. v. Studio 21 Ltd, 925 F.2d 1010 (7th Cir.), cert. denied, 502 U.S. 861, 116 L. Ed. 2d 143, 112 S. Ct. 181 (1991). There is a need to encourage those who have copyrights to assert their rights under the law. Plaintiffs in this case did just that and should be compensated therefore. Defendants' argument that deterrence of infringement is not necessary in this case because the infringing activity will not be repeated is misguided. The deterrent effect intended by an award under 505 is directed not at these defendants, but at all who may hear word of this award. Finally, the court does not deem it necessary and is not required to evaluate the ability of the defendants to pay any award. The interests of promoting enforcement of copyright laws and deterringinfringement will be promoted by an award under 505. In summary, after full evaluation of the guidelines established in Rosciszewski, the court [*10] determines that an award of costs and fees under 17 U.S.C. 505 is warranted. The court will now address the amount of such an award within the framework of Barber v. Kimbrell's Inc., 577 F.2d 216 (4th Cir.), cert. denied, 439 U.S. 934, 58 L. Ed. 2d 330, 99 S. Ct. 329 (1978) as Rosciszewski requires. Rosciszewski, 1 F.3d at 234 n. 8. D. Amount of Award In Barber the Fourth Circuit adopted a framework for evaluating the reasonableness of a fee request first articulated by the Fifth Circuit in Johnson v. Georgia Hwy. Express, Inc., 488 F.2d 714 (5th Cir. 1974). This framework, which has come to be called the Johnson factors, requires an examination of the following: 1) the time and labor required to litigate the suit; 2) the novelty and difficulty of the questions presented by the lawsuit; 3) the skill required to perform the legal service properly; 4) the attorneys' opportunity costs in pursuing the litigation; 5) the customary fee for such services; 6) whether the fee is fixed or contingent; 7) timelimitations imposed by the client or the circumstances; 8) the amount in controversy [*11] and the results obtained; 9) the experience, reputation, and ability of the attorney; 10) the undesirability of the case; 11) the nature and length of the attorneys' professional relationship with the client; and, 12) awards in similar cases. With these principles in mind, the court now turns to the case at hand. Plaintiffs have filed an affidavit in support of their request for fees and costs establishing fees for 508 hours of work for a total of $ 77, and costs and expenses of $ 5, for a total of $ 83, In further support of the fee request, plaintiffs attached a description of legal work performed, the name of the person performing the work, the date on which the work was done and the amount of time spent on the task. (Clark Aff.) In this request, plaintiffs' counsel seeks the following fees: Wade M. Smith, attorney: hours at $ 250/hour Randall M. Roden, attorney: 3 hours at $ 175/hour Daniel W. Clark, attorney: hours at $ 150/hour Lisa B. Lambert, paralegal: 35 hours at $ 45.85/hour Addressing the first issue, it is clear that it took alot of time for plaintiffs' counsel to prepare this case. The work began in November [*12] 1994 and the trial was held in October As to the second factor, this case involve a specific statute and area of intellectual property law. This required knowledge of a unique area of the law which plaintiffs' counsel had acquired. (Clark Aff. P 3.) Further, defendants' assertion of the fair use defense and attempt to extend its application in the political context, as discussed above, was novel in this circuit and required particular skill by plaintiffs' counsel. This discussion also applies to the third factor, and further evidences the skill plaintiffs' counsel exhibited during this case. Addressing the fourth factor, plaintiffs' counsel obviously had to forego other legal work because of this case and stated such in the affidavit in support of the fee award. (Clark Aff. P26). The fifth Johnson factor requires the review of customary fees for like services. In support of this, plaintiffs' counsel submitted the affidavit of another attorney who practices intellectual property law in the Raleigh area. This affidavit supported a range of hourly rates from $ 110 to $ 230, which comports withthe rates to be applied in calculation of the fee award. (Jacobson Aff. P4). Addressing [*13] the sixth factor, the fee in this matter was contingent. (Clark Aff. P4). Plaintiffs' counsel took a risk in accepting this case and should be compensated

4 for the favorable result. The seventh factor requires an examination of time limitations imposed by the client or circumstances. The court is unaware of any such limitations that would have impacted upon representation in this matter. The eight factor is the amount in controversy and the results obtained. Plaintiffs did get a jury verdict on infringement in their favor; however, the jury only awarded $ Further, plaintiffs' unfair trade practices claims were not submitted to the jury and all claims against two defendants named in the complaint were dismissed at trial. The ninth factor is the experience, reputation and ability of counsel. Plaintiffs' counsel is very experienced, highly capable and enjoys a stellar reputation. The tenth factor is the undesirability of the case. For political reasons, this case was likely undesirable to many lawyers. In fact, plaintiffs could not get an attorney in Wilmington to take the matter, and were forcedto travel Raleigh to retain counsel. (Clark Aff. P4). As to the eleventh factor, the [*14] professional relationship between plaintiffs and counsel has spanned over three years and weighs in favor of an award. Finally, the twelfth factor addresses awards in similar cases. Plaintiffs did not present evidence of this to the court and the court is unaware of any such awards. In light of the factors discussed above, the court has reviewed the time entries and task descriptions and finds them all to be reasonable. The court further finds, however, that the hourly rates requested require adjustment. According to the North Carolina Bar Economic Survey, the rates for attorneys in the Raleigh area admitted to the bar the same years as plaintiffs' counsel and practicing in a firm the size of that of plaintiffs' counsel are as follows: Wade M. Smith admitted 1963: $ Randall M. Roden admitted 1976: $ Daniel W. Clark admitted 1988: $ The attorneys will be compensated at these rates for the amount of time requested. The paralegal will be compensated at the rate requested for the amount of time requested. The court had also reviewed the costs and expensesrequested by plaintiffs and finds them to be allowable, with a few exceptions. The [*15] court will not allow payment of $ 2.00 for NCDMV Inquires, $ for a driving record, or $ for Blackman Detective Service, as it cannot see the relevance of those items to this case. III. RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW Defendants have moved the court, pursuant to Fed. R. Civ. P. 50, for judgment as a matter of law. At the close of plaintiffs' evidence, defendants moved for judgment as a matter of law and the motion was denied. At the close of defendants' evidence, the court asked if there were any motions. All counsel responded in the negative. The Court and counsel then held a charge conference on the jury instructions. Counsel then made closing arguments, the jury was instructed and began its deliberations. The following day, as the jury deliberated, defendants requested a bench conference to renew their motion for judgment as a matter of law. The motion was denied and the court reminded counsel for defendants that they had an opportunity to make this motion at the close of all evidence and failed to do so. A party waives its right to judgment as a matter of law if the motionis made at the close of the opponent's [*16] case and the moving party then introduces evidence. 9A C. Wright & Miller, Federal Practice and Procedure 2534 (1995). The moving party may renew its motion for judgment as a matter of law at the close of the evidence; however, the failure to do so precludes a motion for judgment as a matter of law after a verdict has been returned as well as an appeal from the original motion made at the close of the opponent's evidence. Smith v. University of North Carolina, 632 F.2d 316, 339 (4th Cir. 1980). Defendants' renewed motion is precluded on this procedural ground. Defendants' motion also fails on legal grounds. A renewed motion pursuant to Fed. R. Civ. P. 50(b) is evaluated under the same standard as that of the original motion. The issue is "not whether there is literally no evidence supporting the party against whom the motion is directed but whether there is evidence upon which the jury properly could find a verdict for that party." 9A C. Wright & Miller, Federal Practice and Procedure 2524 (1995). The evidence must be viewed in the light most favorable to the party against whom the motion is made. Id. Such [*17] a motion shouldonly be allowed where "there is no substantial evidence to support recovery by the party against whom" the motion would be granted or where all evidence is against the nonmoving party such that there is not doubt of the outcome. Garrison v. United States, 62 F.2d 41, 42 (4th Cir. 1932).

5 Applying the requisite standard, the motion must be denied. Defendants' assertion of the fair use doctrine requires a case by case, factual analysis. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 448 n. 31, 78 L. Ed. 2d 574, 104 S. Ct. 774 (1984). This requisite analysis was undertaken by the trial of this matter. Defendants argued and put forth evidence that their use of the photo was fair because it was used in the political context and not commercially. Plaintiffs countered that defendants did profit from the use of the copyrighted material because the same was used without paying customary costs to plaintiffs. Evaluating the evidence presented in light of the standard articulated above, defendants failed to show that a verdict in their favor was the only reasonable conclusion for the jury to reach. The motion for renewed [*18] judgment as a matter of law will be denied. IV. CONCLUSION For the reasons stated above, plaintiffs' motion for an award of costs and fees is ALLOWED and defendants' renewed motion for judgment as a matter of law is DENIED. It is hereby ORDERED, ADJUDGED and DECREED that plaintiffs have and recover of defendants, reasonable attorneys' fees in the amount of $ 65, and costs in the amount of $ 5, This 24 March W. EARL BRITT Senior United States District Judge Judgment in a Civil Case - March 25, 1998 Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered. IT IS ORDERED AND ADJUDGED that plaintiffs' motion for an award of costs and fees is ALLOWED and defendants' renewed motion for judgment as a matter of law is DENIED. IT IS FURTHER ORDERED, ADJUDGED, and DECREED that plaintiffs have and recover of defendants, reasonable attorneys' fees in the amount of $ 65, and costs in the amount of $ 5, March 25, 1998 Date Raleigh, North Carolina