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Copyright claims asserted by photographer Annie Leibovitz were not so unreasonable as to justify the award of attorneys’ fees to prevailing defendant Paramount Pictures Corp., a federal judge ruled July 21 ( Annie Leibovitz v. Paramount Pictures Corp., No. 94-9144, S.D.N.Y.) U.S. Judge Loretta A. Preska of the Southern District of New York denied Paramount’s motion for attorneys’ fees, finding that Leibovitz did not act in “an objectively unreasonable manner” in refusing to settle her suit. At issue is a movie advertisement featuring a parody of a photograph of actress Demi Moore taken by Leibovitz. Judge Preska found that Paramount was entitled to assert a fair use defense to Leibovitz’s action; the 2nd U.S. Circuit Court of Appeals affirmed. Paramount then moved to recover the cost of defending Leibovitz’s action. Denying the motion, Judge Preska held that the arguments raised by Leibovitz in support of her contention that fair use was not applicable were not sufficiently unreasonable as to weigh in Paramount’s favor on the attorneys’ fee issue. COMBINATION “Rather, the combination of the then-relatively new state of fair use law, the amount of Paramount’s taking of Leibovitz’s work and the commercial purpose of Paramount’s work favors Leibovitz,” Judge Preska said. Nor is Paramount entitled to recover fees based on Leibovitz’s refusal to accept its settlement offer and her demand for a “six-figure” settlement, the judge said. “Settlement, of course, is compromise; it is not obtaining all one could obtain by prevailing in a litigation,” the judge said. “Both parties seem to have forgotten this important principle in this litigation; Leibovitz continued to insist on a ‘six-figure’ amount, while Paramount made its offer of judgment but never moved off that number perhaps because of Leibovitz’s inflexibility. Thus, this factor is close to equipoise.” Leibovitz is represented by Tennyson Schad of Norwick & Schad in New York. Paramount is represented by Jonathan Zavin of Richards & O’Neil in New York.

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