The Prevailing Party in a Copyright Case Gets only a “Ford Fusion” Attorney Fee, Not a “Ferrari” Attorney Fee

Last spring, Coca-cola won a case against a composer who translated a new verse of the song “Coca-Cola Celebration Mix“, into Spanish as a part of a $300 million global advertising campaign. For $6,000, the composer agreed to write a Spanish-language version of the song for Coca-Cola. The dispute was whether the agreement entered into with the plaintiff was a “work for hire” arrangement.  Evidence emerged in discovery that indicated that the work was indisputably a work-made-for-hire, Coke obtained a summary judgment, and the composer was out of luck. Coke moved for an award of its attorney fees and the Magistrate issued a Report and Recommendation allowing partial attorney’s fees in the amount of $535,135.00 and partial costs in the amount of $43,011.99. The Magistrate allowed the fees because the plaintiff should have dropped the case when the evidence of the work-made-for-hire agreement surfaced but he soldiered on. The district court affirmed. See Vergara Hermosilla v. The Coca-Cola Co., No. 11-11317 (11th Cir. Nov. 3, 2011). While this is a lot of money, it was a lot less that Coke was seeking (Coke wanted $1.7 million). The district judge upheld the reduction in the amount holding that Coca-Cola was only entitled to reasonable attorney fees, not the fees that it paid for the services of a premium law firm that had staffed 19 attorneys on the case.  As the court colorfully put it:

[“R]easonable” fee applications . . . are designed to provide adequate compensation that is reasonable to bill to one’s adversary irrespective of the skill, reputation or experience of counsel. In other words, one can drive from point A to point B in a Ferrari, a BMW, or a Ford Fusion. Which car one chooses is ordinarily a matter of personal style coupled with financial freedom. The successful personal injury or criminal defense lawyer may choose the Ferrari. The average corporate defense lawyer will wisely choose the BMW. But a successful attorney fee applicant can only choose the Ford Fusion.

This ruling is sensible–to hold otherwise would chill suits against the deep pocket defendant who can afford the raft of lawyers and paralegals that cases like this can generate. Litigation may be the “sport of kings,” but the unlucky litigant that has to foot the bill may be able to get by with paying more bourgeois  rates. That may be small consolation to Mr. Hermosilla but, hey,  it’s not as bad as it could have been.


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