FameFlynet, Inc. v. Jasmine Enters. Inc., No. 17 C 4749, Slip Op. (N.D. Ill. Aug. 8, 2019) (Durkin, J.)
Judge Durkin granted plaintiff FameFlynet’s motions for attorney’s fees as the prevailing party in this copyright dispute involving celebrity wedding photos, and granted in part defendant Jasmine’s motion to strike FameFlynet’s motion.
Upon learning of FameFlynet’s allegations that Jasmine breached FameFlynet’s copyrights by posting FameFlynet’s images online, Jasmine took down the images. Additionally, at the outset of the case, the parties came to within $1,000 of settling, with FameFlynet demanding $16,000 and Jasmine countering at $15,000. Despite that, the case proceeded for over two years, until the Court ruled that Jasmine infringed and the parties agreed to $5,000 in damages.
With respect to Jasmine’s motion to strike, the Court held as follows:
- It was not improper for FameFlynet to argue for fees based upon settlement discussions. While the Seventh Circuit had not squarely decided the issue, the weight of authority suppported considering settlement discussions when ruling on a fees motion;
- Limitations on the use of information from the parties’ mediation were irrelevant because Jasmine did not point to any statements made exclusively during the mediation that FameFlynet sought to use.
- FameFlynet’s references to Jasmine’s insurance coverage were also not improper. They were not used to show fault or liability.
- The Court struck FameFlynet’s statements that Jasmine kept the infriniging images on its site for three months after it was put on notice, but the parties previously agreed that Jasmine removed them within one day. FameFlynet was limited to the statements it stipulated to.
With respect to FameFlynet’s fees motion, the Court held as follows:
- There was no dispute that FameFlynet was the prevailing party.
- Jasmine’s defenses were not frivolous or objectively unreasonable. The fact that Jasmine only advanced one affirmative defense in opposition to summary judgment did not suggest the others were flawed. Instead, Jasmine advancing only its strongest defense – fair use – served the judicial economy.
- The Court noted that defenses need not be successful to be reasonable.
- Jasmine’s other litigation conduct was also reasonable. Jasmine was not unreasonable for repeating its $15,000 offer, particularly because the offer – three times the $5,000 the parties agreed to after the Court ruled on liability.
- Awarding FameFlynet the $200,000+ it sought would not advance compensation or deterrence. Jasmine removed the photos the same day it became aware of the issue. Jasmine has also stated it had no plans to blog in the future.
- Jasmine and its employee that posted the photograph were unaware of the infringement.
- The nature of the infringement and the parties’ positions and conduct did not justify a substantial fee award. The Court, therefore, awarded $10,500 in fees.
- The Court also noted that the litigation could have been largely avoided because the parties were $1,000 apart in settlement discussions at the outset of the case.