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A federal judge has awarded attorney fees to three major television news networks for having to defend against an “objectively unreasonable” copyright lawsuit that challenged obituaries for movie star Robert Mitchum. The fee ruling from Southern District of New York Judge Barbara S. Jones comes nearly seven months after the judge granted summary judgment to CNN, ABC and CBS in a copyright infringement claim that sought fees from the networks for using scenes from “The Story of G.I. Joe” in their coverage of Mitchum’s death in July 1997. Mitchum received his only Academy Award nomination, for best supporting actor, for his role in the 1945 movie, though he did not win. At the time of Mitchum’s death, Larry Stern, the president of Video-Cinema Films, was considering purchasing the copyright to “The Story of G.I. Joe.” According to Jones’ opinion in Video-Cinema Films Inc. v. Cable News Network, Inc., 98 Civ. 7129, Stern spent 10 hours watching television on the day of Mitchum’s death in search of “as many potential targets of litigation as possible.” After Stern bought the copyright to the film, he sent letters to news organizations requesting payments of $5,000 or $10,000 for their brief use of the movie’s footage. Several requests were sent to organizations that had not used any footage from the film. When CNN, ABC and CBS declined to pay for the clips, citing the fair use provision of the Copyright Act, Stern sued. Judge Jones granted the networks summary judgment last September, finding that they produced news reports that were in the public interest. This week, the judge ruled that the networks were entitled to attorney fees due to Stern’s motivation for bringing his suit and his “objectively unreasonable” position. “The Court is persuaded that fees are appropriate in this case to deter future copyright owners from using the threat of litigation to chill other fair uses,” Jones wrote. “To hold otherwise would diminish any incentive for defendants to incur the often hefty costs of litigation to defend the fair use doctrine.” The judge ordered the networks to submit fee requests by April 18. Robert D. Balin of Davis Wright Tremaine, which represented CNN, said he could not yet give an estimate on the fees, but he described the litigation as “protracted” and said the fees would be “substantial.” He said that although the U.S. Supreme Court has made it clear that defendants in copyright suits can win attorney fees, as a matter of practice it is “pretty unusual.” He said the opinion could be important as a deterrent to unreasonable litigation. Gregory A. Sioris, who represented Stern, said he would ask Jones to reconsider her ruling. Under Rule 54(d)(2)(B) of the Federal Rules of Civil Procedure, he said, a party seeking fees has to provide an estimate when the fee request is made, something that the defendants did not do. Balin said that argument is without merit, and added that the procedure in this case — asking if an award of fees is warranted before calculating them — is common practice. UNTIMELY APPLICATION ARGUMENT Judge Jones rejected Stern’s argument that the fee application was untimely under Fed. R. Civ. P. 54(d)(2)(B). She also declined to sanction the networks for allegedly filing misleading statements. One page of the networks’ notice of motion on fees, delivered Oct. 17, 2001, was stamped Sept. 17, 2001, an error the court found to be merely typographical. She said that the plaintiff’s objections to the error was “an example of the frivolous nature of Plaintiff’s arguments.” Gregory A. Welch of Davis Wright also represented CNN. Nathan Siegel, in-house counsel at ABC based in the network’s Washington, D.C., office, represented ABC. Naomi B. Waltman, in-house counsel at CBS, represented CBS.

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