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IP/Entertainment Case Law Updates

Dawes-Ordonez v. Forman

Court of appeals affirms award of attorney’s fees to defendant who prevailed in copyright infringement action because plaintiff did not provide notice to defendant of alleged infringement before filing suit, and orders sanctions against plaintiff because appeal is frivolous.

Plaintiff sued defendant Realtor Association of Greater Fort Lauderdale, among other defendants, for infringing her copyright in certain photographs of a house by disseminating those photographs on a multiple listing service owned by defendant Association. The district court granted summary judgment in favor of the Association, holding that plaintiff had “constructively delivered” the photographs to the Association and “intended the [p]hotographs be distributed by the Association.” The district court awarded reasonable attorney’s fees to the Association, explaining that plaintiff’s decision to sue before giving notice to the Association of its alleged infringement was “objectively unreasonable” and “demonstrate[d] a questionable subjective motivation.” The district court also awarded attorney’s fees to “deter” copyright holders from filing similar suits without first attempting to resolve them out of court.

On appeal, the Eleventh Circuit held that the district court did not abuse its discretion by awarding attorney’s fees, and affirmed the award. Finding that “the district court was entitled to question plaintiff’s motive in refusing to notify the Association after she had notified the realtors and the real estate company that also participated in the alleged infringement,” the court observed that “the purposes of the copyright laws are served only when parties ‘litigate meritorious’ arguments.” Turning to the Association’s request for “frivolous appeal” sanctions, the court concluded that plaintiff’s appeal was “entirely without merit,” awarded the Association double costs and reasonable attorney’s fees, and remanded the matter to the district court for a determination of the amount of defendants’ reasonable attorney’s fees on appeal.