In a recent decision from the District of Connecticut, Judge Meyer awarded attorneys’ fees against a plaintiff who the court found brought an “objectively unreasonable” copyright infringement claim based on an unpublished work of non-fiction.
Plaintiff Joseph Leary’s 2013 action alleged that a book written by defendants Roy Manstan (“Manstan”) and Frederic Frese (“Frese”), and published by Westholm Publishing, LLC, infringed plaintiff’s manuscript about a Revolutionary War-era submarine called the “Turtle.” According to the Court’s earlier summary judgment order, reported by us here, plaintiff and Frese worked together in the 1970s to create a replica of the “Turtle,” and in the intervening decades plaintiff drafted a manuscript “weaving together a biography of Bushnell [the original builder of the sub], historical information about the Turtle, and plaintiff’s own experience building a replica of the Turtle.”
Approximately 30 years after plaintiff and Frese built the replica, Frese and Manstan built a new replica and ultimately wrote a book about “Bushnell, the Turtle submarine, and their own experiences building a replica of the Turtle.” The court granted summary judgment on plaintiff’s claim, noting that although “the two works are about much of the same basic subject matter,” no reasonable jury could view the works as substantially similar.
After prevailing at summary judgment, defendants moved to recover their attorneys’ fees pursuant to 17 U.S.C. § 505, which permits a court, in its discretion, to “award a reasonable attorney’s fee to the prevailing party [of a copyright action] as part of the costs.” The court granted the motion, basing its decision on the “objective unreasonableness” of plaintiff’s claim and “the need in particular circumstances to advance considerations of compensation and deterrence.”
Plaintiff’s claim was “objectively unreasonable,” the court said, because copyright protection for non-fiction works is particularly narrow—protecting only “the author’s original expression of particular facts and theories already in the public domain.” Because there was no “dispute that defendants’ book did not copy plaintiff’s work or even closely paraphrase any portion of it,” the plaintiff’s “claim was almost self-evidently doomed from the start.”
Regarding deterrence, the court relied on the plaintiff’s apparent motivation for bringing the lawsuit, which the court found was based on “anger about having been removed from the Turtle replica project.” According to the court, the plaintiff’s “spite suit” “complained that defendants ‘built a copy of [his] submarine and they wrote [his] name out of it.’” As a result, the court found that defendants “should be compensated for having to defend against this objectively unreasonable claim,” on which they incurred substantial legal fees.
The court also held plaintiff solely responsible for payment of the $108,344.02 in attorneys’ fees ordered—declining to sanction plaintiff’s attorney. As to the attorney’s conduct, the court found “obvious incompetence” but not the “heightened standard of bad faith” required to sanction counsel. However, the court not-so-subtly suggested that the plaintiff pursue “other avenues available” to recover the amount from his attorney “such as a malpractice claim in state court . . .”
The case is Leary v. Manstan, et al., No. 3-13-cv-00639 in the District of Connecticut. A copy of the decision can be found here.