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Tessler v. NBC Universal, Inc.

Court holds that plaintiff’s copyright infringement claim was not objectively unreasonable or frivolous, even though the court had granted defendant’s motion to dismiss the copyright infringement claim, and denies defendant’s request for attorney’s fees.

Plaintiff Cynthia Tessler filed suit against NBC Universal, claiming that NBC’s television program Trading Places infringed her video titled Parenting Your Parents. The court granted the defendant’s motion to dismiss after finding “that there are no substantial similarities, intrinsically or extrinsically, between the two works based on protectable elements.”

The defendant moved for attorney’s fees and costs. A magistrate judge recommended that the plaintiff pay $56.10 in costs. The defendant objected to the magistrate’s recommendation and the court reviewed the objections de novo. The Fourth Circuit uses four factors to determine if an award for attorney’s fees should be made: “[1] the motivation of the parties, [2] the objective reasonableness of the legal and factual positions advanced, [3] the need in particular circumstances to advance the considerations of compensation and deterrence, and [4] any other relevant factor presented.” Rosciszewski v. Arete Ass’n, 1 F.3d 225 (4th Cir. 1993); Diamond Star Bldg. Corp. v. Freed, 30 F.3d 503 (4th Cir. 1994).

The defendant asserted that the magistrate judge erred in applying the second, third and fourth Rosciszewski factors, specifically asserting that the plaintiff’s claims were unreasonable because they failed as a matter of law. The court held that the second factor weighs in favor of the plaintiff, explaining that “NBC’s summary judgment [sic] success simply reflects the fact that Tessler was unable to establish a prima facie case for copyright infringement; it does not necessarily imply that the factual or legal grounds of the case rise to the level of objective unreasonableness.”

The court held that the fourth factor – in this case, the fact that the defendant prevailed on all of its claims – weighed in favor of the defendant, but said success on all claims is not indicative of objective unreasonableness and that the third and fourth factors “have rarely played an important role in the Fourth Circuit’s analysis of attorney’s fees awards.” The court adopted in part and rejected in part the magistrate’s findings and denied the defendant’s motion for attorney’s fees.