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IP/Entertainment Case Law Updates

DuckHole Inc. v. NBSUniversal Media LLC

District court awards attorneys’ fees and costs in copyright infringement action involving plaintiff’s claim that defendants’ Animal Practice infringed its treatment PETS, where plaintiff’s principal was intellectual property law attorney yet proceeded with claims despite lack of substantial similarity.

Defendants’ motion for attorneys’ fees and costs followed the court’s dismissal of copyright infringement claims brought by plaintiff DuckHole Inc. against NBCUniversal and several other production companies involved in producing the television program Animal Practice. Plaintiff alleged that defendants copied ideas from plaintiff’s treatment for a proposed television show, PETS. Defendants’ work, Animal Practice, depicts day-to-day life at Crane Animal Hospital, a fictional privately owned upscale animal hospital in New York City. While the television show features exotic animals, its plot lines largely focus on the personal lives of its ensemble cast of characters. In contrast, the treatment for PETS depicted a city-owned after-hours veterinary clinic.

The court dismissed plaintiff's First Amended Complaint, finding that “PETS and Animal Practice have distinct plots, demonstrating that they are wholly different expressions of the same idea.” Additionally, the elements identified by plaintiff demonstrating similarity “are too generic to be protectable elements.”

Applying the Fogerty test, the court found that plaintiff acted unreasonably in arguing that the protectable elements were substantially similar and that the idea of a sitcom set in an animal hospital was novel enough to support a copyright infringement claim. As to the deterrence factor, the court noted that while NBCUniversal Media “may be capable of shouldering litigation costs, the other defendants are not.” The court also noted that “[d]eterring non-meritorious lawsuits against defendants seen as having ‘deep pockets’ and compensating parties that must defend themselves against meritless claims are both laudable ends.” The court also noted that while plaintiff itself had not been involved in repeated litigation or acted vexatiously, plaintiff’s principal was an experienced intellectual property lawyer, sophisticated in copyright law. Although defendants had made repeated efforts to confer with plaintiff and to avoid litigation, plaintiff refused to engage in settlement discussions. In the court’s view, plaintiff prosecuted its claims despite knowing that its claims lacked merit.

In evaluating defendants’ fee request, the court found that defendants’ total hours and hourly rates were reasonable and consistent with past fee awards in copyright suits in the same district. With the exception of a request for fees associated with DVD copying, the court granted defendants’ request for nontaxable costs in its entirety.


For more information, please contact Jonathan Zavin, W. Allan Edmiston, David Grossman, Tal Dickstein or Meg Charendoff.

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