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A suit brought by local songwriters against pop star Britney Spears has hit the Eastern District Court of Pennsylvania one more time, now with a ruling denying a claim for attorney fees by the singer’s attorneys. U.S. District Judge Berle M. Schiller, who granted summary judgment in favor of the defendants in May, said the plaintiffs’ allegation that the melody of Spears’ song “What You See Is What You Get” infringed the copyright of their song “What U See Is What U Get” was reasonable. “Ultimately, the fact of this case proved to be, as defense counsel contended, mere coincidence, but this could only be determined after discovery allowed for a full examination of the case in light of all the facts,” Schiller said. “Consequently and innocently, what plaintiffs saw is not what they got and therefore, I deny defendants’ motion for attorneys’ fees.” To award attorney fees, Schiller continued, would be an act against the spirit of the Copyright Act. “It would be inappropriate to award attorney’s fees in hindsight as doing so may deter others who may have potentially viable claims from exercising their rights for fear of repercussion,” Schiller said. Songwriters Michael Cottrill and Lawrence E. Wnukowski, who sued Spears and her record company, Jive Records, said they penned their tune after being asked by a talent scout representing Spears to submit songs to her. They found Spears’ song, which appeared on her “Oops … I Did It Again” album, suspiciously similar to theirs. But the defense claimed the writing of their song was completed before they ever received the submission from the Pennsylvania songwriting duo. Cottrill and Wnukowski were represented by George Bochetto of Bochetto & Lentz. In May, Schiller found 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. Spears’ attorneys, Michael T. Mervis of Proskauer Rose in New York and Vincent V. Carissimi of Pepper Hamilton in Philadelphia, followed up by petitioning the court for more than $140,000 in attorney fees. They argued forcing the plaintiffs to pay up was the only way to discourage frivolous lawsuits. But the defendants’ motion, Schiller said, was asking the court to decide the filing and maintaining of the plaintiffs’ claim “in hindsight.” “Plaintiffs’ claims were objectively reasonable, albeit unsuccessful,” Schiller said, citing the similarity of the two song titles. “Thus, at first blush, it appeared as though plaintiffs had a viable claim for copyright infringement.” Schiller said it was also crucial to acknowledge the difficulty of discovery relating to the creation of the defendants’ song, because much of the requested evidence was in Sweden. Depositions from the songwriters of Spears’ song were not taken until after the defendants filed their motion for summary judgment. That testimony showed they had finished the melody of Spears’ song before the plaintiffs obtained a copyright or distributed the copyrighted version of their song, Schiller said. Schiller also ruled the plaintiffs’ suit was not brought or conducted with improper motive, rejecting the defendants’ argument that the plaintiffs 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.” “First, mere mention of an alleged ‘slush fund’ in plaintiffs’ deposition does not warrant a finding of improper motive … Second, plaintiffs’ counsel conducted a reasonable investigation of their clients’ claims, including evaluating the songs with a musicologist before filing suit,” Schiller said. Schiller also found no merit in the defense’s contention that the plaintiffs’ request to depose Spears only weeks after the suit was filed was unreasonable and unfair. “Plaintiffs’ counsel assert that this was done, not to harass, but in order to accommodate her schedule,” Schiller said. “Regardless of this contention, this court promptly denied the request as premature and defendants did not suffer any inconvenience as a result.” Shannon P. Duffy contributed to this report.

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