Indianapolis, Indiana –Plaintiff and Attorney Richard N. Bell of McCordsville, Indiana filed suit in the Southern District of Indiana alleging that Defendants, David N. Powell and Midwest Regional Network for Intervention with Sex Offenders (“MRNISO”), infringed his rights in his copywritten photograph. In this case, the Court was faced with cross-motions for summary judgment, which it ruled in favor of the Defendants. After being granted summary judgment, the Defendants filed their separate Motions for Attorney Fees and Bill of Costs. While Powell’s motion was denied as moot, MRNISO’s motion was granted.
Bell, in his motion for summary judgment asserted that he was owed for damages caused by the Defendants for their unauthorized use of his photograph. However, Powell asserted Eleventh Amendment immunity against Bell’s claims and MRNISO claimed it was protected by the fair use doctrine. The Court agreed with both Powell and MRNISO and granted them summary judgment.
Following the final entry of judgment against Bell, Powell and MRNISO each filed a separate motion for attorney fees. According to the Court, Bell filed a “Report of Settlement Between Powell and Bell” and requested all deadlines for Powell’s motion be stayed. Powell did not file a response to the Report of Settlement and thus the dates were vacated by the Court. Powell’s motion was denied by the Court without prejudice leaving Powell the opportunity to refile his motion if the settlement was not able to be finalized.
The Court noted in its order granting MRNISO’s motion that in Fogerty v. Fantasy, Inc., the United States Supreme Court listed a number of nonexclusive factors for determining whether to award costs and fees in copyright cases including “(1) the frivolousness of the action; (2) the losing party’s motivation for filing or contesting the action; (3) the objective unreasonableness of the action; and (4) the need to ‘advance considerations of compensation and deterrence.’” 510 U.S. 517, 535 n.19 (1994). MRNISO originally requested $55,751.30 in fees and costs but amended its motion to request $77,970.05 after its attorney audited the billing statement and found time had not been entered contemporaneously and was incorrect. MRNISO’s counsel reviewed the time records, provided time sheets that had not been properly logged, and logged the “minimum amount of time warranted for a task where the time spent was not immediately apparent.”
While Bell argued attorney fees for time not contemporaneously recorded should be denied based off various court cases, the Court found that this argument, which he previously unsuccessfully made in Bell v. Taylor, still failed. The cases cited by Bell were Social Security appeal cases involving the same attorney who had failed to keep actual time records spent on his cases numerous times. After multiple admonishments by the court for failing to keep contemporaneous time, his attorney fees were eventually denied. In this case, the Court found the proof provided by MRNISO’s counsel was valid and only subtracted the amount of fees requested for correcting a filing error from the amount awarded to MRNISO. The total amount awarded to MRNISO was $76,200.05, only $1,770.00 less than requested.