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A federal judge has slashed a fee request in a copyright infringement suit after finding that the plaintiff’s lawyers won just $150,000 in statutory damages — a tiny fraction of the $4.4 million in damages they originally sought — and had logged an excessive number of hours to prepare for a two-day nonjury trial. In his 30-page opinion in Schiffer Publishing Ltd. v. Chronicle Books, U.S. District Judge Berle M. Schiller cut about 72 percent from the fee request filed by a team of lawyers from Drinker Biddle & Reath who had asked for more than $891,000 in fees and costs. In the suit, Schiffer Publishing claimed that it owned the rights to photographs of fabrics it had published in a series of books with titles such as “Fun Fabrics of the ’50s” and “Flower Power: Prints from the 1960s.” The suit alleged that some of the photos were included without permission in a book published by Chronicle Books titled “1000 Patterns.” In a series of prior decisions, Schiller had ruled in the plaintiff’s favor on their copyright infringement claims, but dismissed their Lanham Act claims and ruled in favor of the defendants on a claim under the Digital Millennium Copyright Act. In a January 2005 opinion announcing his verdict from a nonjury trial, Schiller found that the defendant had infringed the copyrights for 10 photos and awarded $15,000 in statutory damages for each photo, for a total award of $150,000. He also issued an injunction that permanently bars Chronicle Books from filling or taking future orders for “1000 Patterns” within the United States. Now Schiller has ruled that although the plaintiff is entitled to an award of fees and costs, it deserves just a fraction of the amount it requested. In one lengthy section of the opinion, Schiller made a series of cuts that trimmed more than $211,000 from an $828,000 fee request due to excessive hours, inadequate documentation and redundant staffing. And in the final section of the opinion, Schiller cut the remaining fees by two-thirds due to the plaintiff’s limited success. But Schiller also had some harsh words for the defendant, finding that the plaintiff was entitled to fees in part because of the defendant’s “unreasonableness” in the litigation. “Defendants were faced with overwhelming evidence of substantial similarity. It was obvious, both to plaintiffs and to the court, that defendant’s images in 1000 Patterns were identical to plaintiff’s photographs, and that defendants had actually copied plaintiffs’ photographs,” Schiller wrote. “Despite these obvious similarities, defendants refused to admit until two days before the close of discovery that they had access to plaintiffs’ books. Defendants also disputed that they had removed images from plaintiffs’ books, scanned them into a computer, and included the scanned images in 1000 Patterns.” Schiller found that the defendant’s litigation tactics had “unnecessarily extended the trial, as evidenced by the 25 pages of trial transcript wherein plaintiff’s counsel laboriously established the identity of images between the Schiffer books and 1000 Patterns.” But on the size of the fee request, Schiller sided mostly with the defense, finding that the fee request was simply too large for the degree of success and that the hours logged on the case were at times excessive. Significantly, Schiller concluded that the team of plaintiff’s lawyers, led by attorney Nancy Rubner-Frandsen, had logged too many hours for “trial preparation.” The nonjury trial lasted just two days and involved 11 witnesses, Schiller noted, but the plaintiff’s team had billed for more than 560 hours of trial preparation by six lawyers. “This is the equivalent of slightly more than 70 full eight-hour days to prepare for a trial that lasted just two days,” Schiller wrote. “The court holds that this amount is excessive, and will reduce this amount by half, to $80,393.” Schiller also cut about 250 hours from the bill — or nearly $70,000 in attorney time — due to inadequate documentation in the fee request of how the time was spent. And at times, Schiller said, the plaintiff’s team also overstaffed the case. In May and June of 2004, Schiller noted, witnesses were deposed in San Francisco and London. The plaintiffs charged for both Nancy Rubner-Frandsen, the lead lawyer on the case, and for Cheryl Slipski, the senior associate, to prepare for and attend the depositions. Schiller concluded that only the time charged by Rubner-Frandsen should be reimbursed, slashing more than 150 hours of Slipski’s time. The plaintiff had also billed for a team of four lawyers to attend the first day of trial, and five lawyers on the second day. But Schiller concluded that “two partners and one associate were adequate to try this case” — a ruling that trimmed about $9,500 from the fee request. Defense attorneys David A. Squellati and Jennifer L. Small of Fenwick & West in Mountain View, Calif., argued that the plaintiff’s fee request was “outrageous” in light of the enormous disparity between the amount of damages the plaintiff originally sought and the amount Schiller ultimately awarded. Schiller noted that the plaintiff originally complained about 118 photos and sought $25,000 per photograph under the Digital Millennium Copyright Act, or $2.95 million, as well as $38,000 per photo on their Copyright Act claim, or more than $4.48 million. The plaintiff later amended the request to one based on the number of books infringed, and requested $150,000 in damages for each of 13 books, or $1.95 million. But in the final verdict, Schiller said, the plaintiff was awarded just $150,000 in statutory damages. Schiller said he agreed with the defense lawyers that “this disparity is significant,” and, as a result, reduced the fees by two-thirds. “Plaintiffs ultimately recovered just over 2 percent of their highest damages demand (based on their DMCA claim and their per-photograph Copyright Act damages calculation). Even if the copyright damages … are viewed from a per book, instead of a per photograph, basis, plaintiffs only recovered about 3 percent of their demand,” Schiller wrote.

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