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Apparently, winning isn’t enough for pop songstress Britney Spears and her lawyers. In the wake of a decisive court victory last month — in which a federal judge tossed out a copyright infringement suit brought by two men who claimed that Spears stole one of their songs — lawyers for Spears and Jive Records are now asking for an award of more than $140,000 in attorney fees and costs. Forcing the plaintiffs to pay up, they argue, is the only way to discourage frivolous lawsuits. “Record companies, music publishers and well-known recording artists are all too frequently the targets of frivolous or unreasonable lawsuits. Plaintiffs see a simple coincidence, such as the similarity of a song title … and use it as a means to leverage a settlement with a large or successful defendant,” attorneys Michael T. Mervis of Proskauer Rose in New York and Vincent V. Carissimi of Pepper Hamilton in Philadelphia wrote. In the brief, the defense lawyers say they have proof that the two plaintiffs — Michael Cottrill and Lawrence E. Wnukowski — knew they had no case long before the suit was filed, but were counting on securing a settlement from the record company’s “slush fund.” They also say the plaintiffs refused to drop the suit even after it became clear that they had no chance of proving it. But plaintiffs’ attorney George Bochetto of Philadelphia’s Bochetto & Lentz said on Friday that the defense motion was “nothing more than an attempt to chill my clients’ appeal rights — and it won’t work.” In the suit, Cottrill and Wnukowski claimed that the melody of Spears’ song “What U See Is What U Get” infringed their song titled “What You See Is What You Get.” In May, U.S. District Judge Berle M. Schiller of the Eastern District of Pennsylvania found that the plaintiffs could never prove one of the essential elements of their case — that the defendants ever had access to their song — because the undisputed evidence showed that Spears recorded her version before the Pennsylvania men ever gave their song to an agent to be pitched to Spears. “As plaintiffs have not come forward with any affirmative evidence showing access, there is no reasonable possibility that the creators copied plaintiffs’ song before November 1999 when the melody of defendants’ song was completed,” Schiller wrote. Now the defense lawyers are arguing that the plaintiffs knew from the beginning that the suit was bogus. In the suit, the plaintiffs claimed they were contacted in 1995 by William Kahn, a talent scout who represented Spears, who invited them to submit songs for her upcoming album. They claimed they began writing “What You See Is What You Get” in 1998 and gave Kahn an instrumental copy by October 1999. By November 1999, the suit said, the final version of the song was submitted to the U.S. Copyright Office. But the four men credited as writers of Spears’ song “What U See Is What U Get” — Jorgen Elofsson, David Kreuger, Per Magnusson, and Rami Yacoub — testified that their work on the song’s melody was completed by October 1999. Defense lawyers argue that Kahn’s deposition testimony shows that even if the plaintiffs were unaware of the chronology, they surely knew that Kahn had never supplied their song to Spears. Kahn, the defense team says, testified that he told Cottrill he had never given the tape of his song to anyone. According to court papers, Kahn testified that in the year leading up to the recording of Spears’ album, Cottrill “had asked me on several occasions to send the song to Jive Records — and I repeatedly told him that I not only did not, [but] I would not send the song to Jive because I did not think it was a good song.” At one point in the deposition, Kahn offered a particularly damning view of the lawsuit, saying he objected to the description of his role in the events because “it gives the appearance that I’m part of your scam.” The defense team argues that the conduct of the plaintiffs and their lawyers during the litigation tips the scales in favor of awarding the defendants their attorney fees. The plaintiffs obviously sought publicity even before the suit was filed, they argue, because, on the day the suit was filed, an article appeared in the Philadelphia Daily News in which each of the plaintiffs was quoted — one saying he felt that he was “robbed,” and the other saying he was “devastated.” And on the Web site for Bochetto & Lentz, the plaintiffs’ lawyers continue to tout the suit as one in which their clients had “their copyrighted song stolen by Britney Spears,” the defense team notes. The lawsuit itself was also misleading, the defense team argues, by alleging that a “musicological” comparison of the songs shows strong similarities. In fact, the defense team says, the evidence shows that the plaintiffs didn’t hire a musicologist until months after the suit began. And while the plaintiffs were ultimately able to offer an expert report to the court that backed up their case, the defense team argues that the plaintiffs’ lawyers gave bad legal advice to the “neophyte” expert whose opinion was later rejected as irrelevant by the court because it was premised on the wrong legal standard. In an interview Friday, Bochetto said that he had not yet seen the defense motion but that he considered it nothing more than an attempt to intimidate his clients. Bochetto said he has already filed a notice of appeal from Schiller’s decision and believes he will win a reversal due to the strength of his evidence. And although Schiller rejected his expert, Bochetto said, the fact that an expert backed up the plaintiffs’ claim with an opinion that the songs were similar is proof that the lawsuit was never frivolous. The defense team is seeking more than $140,000 in attorney fees and costs but notes in its motion that the figure is already discounted. The Proskauer Rose firm discounted its fees by 30 percent to account for the fact that lawyers’ hourly rates are lower in Philadelphia than they are in New York, the brief says. And the defendants aren’t seeking any of the fees they paid to the Pepper firm, which acted as local counsel.

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