UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW … · Case 1:10-cv-02730-AJN Document 339 Filed 10/03/14 Page 5 of 27 Defendant and Counterclaim Plaintiff Daniel Morel submits

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------------------- ---x AGENCE FRANCE PRESSE

Plaintiff,

-v- DANIEL MOREL, Defendant,

-v- GETTY IMAGES (US), INC., et al., Counterclaim Defendants.

: : : : : : : :

10-CV-2730 (AJN)

----------------------------------------------------------- ---x

MEMORANDUM OF LAW IN SUPPORT OF DANIEL MOREL’S

MOTION FOR AWARD OF ATTORNEY’S FEES AND COSTS

WILLKIE FARR & GALLAGHER LLP

787 Seventh AvenueNew York, New York 10019

Attorneys for Defendant and Counterclaim Plaintiff Daniel Morel

Case 1:10-cv-02730-AJN Document 339 Filed 10/03/14 Page 1 of 27

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................................... i

ARGUMENT ........................................................................................................................... 1

I. MR. MOREL IS ENTITLED TO AN AWARD OF ATTORNEY’S FEES AND COSTS UNDER SECTION 505 OF THE COPYRIGHT ACT. ............................................. 1

A. Mr. Morel Is the Prevailing Party. ................................................................................ 2

B. Defendants’ Infringement Was Willful. ....................................................................... 5

C. AFP Was Improperly Motivated in Commencing This Lawsuit. ................................ 7

D. AFP’s Claims and Defenses Were Objectively Unreasonable. .................................... 9

E. The Public Interest and Goals of Compensation and Deterrence Favor an Award of Attorney’s Fees. ......................................................................................... 10

II. MR. MOREL IS ENTITLED TO AN AWARD OF ATTORNEY’S FEES UNDER THE DMCA. .......................................................................................................................... 12

III. THE FEES AND COSTS SOUGHT BY MR. MOREL ARE REASONABLE. .................. 12

A. The Amount of Attorney’s Fees Sought by Mr. Morel Is Reasonable. ..................... 13

B. The Amount Sought by Mr. Morel for Fees Incurred by Outside Consultants Is Reasonable. ............................................................................................................. 18

C. The Amount of Costs Sought by Mr. Morel Is Reasonable. ...................................... 19

CONCLUSION ...................................................................................................................... 22


TABLE OF AUTHORITIES

Cases Page(s) In re 114 Tenth Ave. Assoc., Inc.,

No. 05-60099, 2010 WL 3304294 (Bankr. S.D.N.Y. Aug. 20, 2010) .............................. 16

Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of Albany, 369 F.3d 91 (2d Cir. 2004) ................................................................................................ 20

Arbor Hill Concerned Citizens Neighborhood Ass’n. v. Cnty of Albany, 522 F.3d 182 (2d Cir. 2007) ........................................................................................ 13, 14

Baker v. Urban Outfitters, Inc., 431 F. Supp. 2d 351 (S.D.N.Y. 2006) ................................................................................. 7

Bergerson v. N.Y. State Office of Mental Health, 652 F.3d 277 (2d Cir. 2011) .............................................................................................. 13

Briarpatch Ltd. v. Geisler Roberdeau, Inc., No. 99-Civ-9623, 2009 WL 4276966 (S.D.N.Y. Nov. 30, 2009) ....................................... 1

Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (2001) ............................................................................................................ 2

Canal Image UK Ltd. v. Lutvak, 792 F. Supp. 2d 675 (S.D.N.Y. 2011) ................................................................................. 1

Cornell Univ. v. Hewlett-Packard Co., No. 01-cv-1974, 2009 WL 1405208 (N.D.N.Y. May 15, 2009) ....................................... 19

Crown Awards, Inc. v. Discount Trophy & Co., 564 F. Supp. 2d 290 (S.D.N.Y. 2008) ........................................................................ passim

Dahn World Co., Ltd. v. Chung, 2009 WL 277603 (D. Md. Feb. 5, 2009) ........................................................................... 12

DiBella v. Hopkins, 407 F. Supp. 2d 537 (S.D.N.Y. 2005) ............................................................................... 18

Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) ............................................................................ 1, 9

Getaped.com Inc. v. Cangemi, 188 F. Supp. 2d 398 (S.D.N.Y. 2002) ................................................................................. 5

Gierlinger v. Gleason, 160 F.3d 858 (2d Cir. 1998) ........................................................................................ 13, 16


(ii)

Hensley v. Eckerhardt, 461 U.S. 424 (1983) ................................................................................ 14

J.S. Nicol, Inc. v. Peking Handicraft, Inc., No. 03 Civ. 1548, 2008 WL 4613752 (S.D.N.Y. Oct. 17, 2008) .................... 13, 14, 18, 20

Kepner-Tregoe, Inc. v. Vroom, 186 F.3d 283 (2d Cir. 1999) ................................................................................................ 5

Klinger v. Conan Doyle Estate, Ltd., 761 F.3d 789 (7th Cir. 2014) ............................................................................... 4, 5, 11, 12

Marion S. Mishkin Law Office v. Lopalo, No. 13-cv-2699, 2014 WL 4192071 (2d Cir. Aug. 26, 2014) .......................................... 15

Matthew Bender & Co., Inc. v. West Publ’g Co., 240 F.3d 116 (2d Cir. 2001) ............................................................................................ 1, 9

Miele v. N.Y. State Teamsters Conf. Pension & Ret. Fund, 831 F.3d 407 (2d Cir. 1987) .................................................................................. 14, 16, 17

Miroglio S.P.A. v. Conway Stores, Inc., 629 F. Supp. 2d 307 (S.D.N.Y. 2009) ............................................................................... 13

Nat’l Football League v. PrimeTime 24 Joint Venture, 131 F. Supp. 2d 458 (S.D.N.Y. 2001) ............................................................................... 19

Oboler v. Goldin, 714 F.2d 211 (2d Cir. 1983) ........................................................................................ 10, 11

Philadelphia Stock Exch. v. Int’l Sec. Exch., Inc., No. 05 Civ. 5390, 2005 WL 2923519 (S.D.N.Y. Nov. 2, 2005) ......................................... 2

Quinto v. Legal Times of Washington, Inc., 511 F. Supp. 579 (D.D.C. 1981) ....................................................................................... 10

Ritchie v. Gano, 754 F. Supp. 2d 605 (S.D.N.Y. 2010) ................................................................................. 2

Torah Soft Ltd. v. Drosnin, No. 00 Civ. 5650, 2001 WL 1506013 (S.D.N.Y. Nov. 27, 2001) ....................................... 7

Tylor v. Welch, No. 13–00458, 2014 WL 1415006 (D. Hawaii Apr. 11, 2014) ........................................ 12

U.S. Football League v. Nat’l Football League, 87 F.2d 408 (2d Cir. 1989) ................................................................................................ 20


(iii)

U2 Home Entm’t, Inc. v. Hong Wei Int’l Trading, Inc., No. 04 Civ. 6189, 2008 WL 3906889 (S.D.N.Y. Aug. 21, 2008) ....................................... 5

Vargas v. Transeau, No. 04 civ. 9772, 2008 WL 3164586 (S.D.N.Y. Aug. 6, 2008) ......................................... 9

Video-Cinema Films, Inc. v. Cable News Network, Inc., No. 98-cv-7128, 2003 WL 1701904 (S.D.N.Y. Mar. 31, 2003) ......................................... 7

In re Visa Check/Mastermoney Antitrust Litig., 297 F. Supp. 2d 503 (E.D.N.Y. 2003) ............................................................................... 19

Williams v. Crichton, 891 F. Supp. 120, 121 (S.D.N.Y. 1994) .............................................................................. 9

Yash Raj Films (USA) Inc. v. Movie Time Video USA, Inc., No. 04 Civ. 4107, 2007 WL 2572109 (E.D.N.Y. July 26, 2007) ........................................ 5

Statutes

17 U.S.C. § 505 ............................................................................................................................... 1

17 U.S.C. § 1203(b)(4) .................................................................................................................. 19

17 U.S.C. § 1203(b)(5) .................................................................................................................. 12


Defendant and Counterclaim Plaintiff Daniel Morel submits this memorandum of law in

support of his motion for an award of attorney’s fees and costs pursuant to Rule 54 of the Federal

Rules of Civil Procedure, Section 505 of the Copyright Act, Section 1203 of the Digital Millennium

Copyright Act (the “DMCA”), and any other applicable statutes and rules.

ARGUMENT

I. MR. MOREL IS ENTITLED TO AN AWARD OF ATTORNEY’S FEES AND COSTS UNDER SECTION 505 OF THE COPYRIGHT ACT.

The Copyright Act provides:

In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an office thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.

17 U.S.C. § 505.

Attorney’s fees are awarded in the court’s discretion. See Fogerty v. Fantasy, Inc., 510 U.S.

517, 534 (1994). In making awards of attorney’s fees to a prevailing party, courts consider the non-

prevailing party’s “frivolousness, motivation, objective unreasonableness (both in the factual and

legal components of the case) and the need in particular circumstances to advance considerations of

compensation and deterrence.” Id. at 534 n.19. The non-prevailing party need not have engaged in

all these types of conduct to justify an award of attorney’s fees. Canal Image UK Ltd. v. Lutvak,

792 F. Supp. 2d 675, 681 (S.D.N.Y. 2011). So, for example, a non-prevailing party’s unreasonable

conduct may justify awarding attorney’s fees, but a finding of objective unreasonableness is not a

prerequisite to such an award. See Matthew Bender & Co., Inc. v. West Publ’g Co., 240 F.3d 116,

122 (2d Cir. 2001). Nor is it “necessary that this Court make a finding of frivolousness or bad faith

in order to award a fee.” Briarpatch Ltd. v. Geisler Roberdeau, Inc., No. 99 Civ. 9623, 2009 WL

4276966, at *5 (S.D.N.Y. Nov. 30, 2009).


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In the present case, the pertinent factors militate in favor of the award of attorney’s fees.

Awarding attorney’s fees to Mr. Morel would “both compensate Plaintiff for having to litigate the

claim, and would deter future Defendants from acts of infringement, litigating in bad faith and

introducing objectively unreasonable components into copyright cases.” Crown Awards, Inc. v.

Disc. Trophy & Co., Inc., 564 F. Supp. 2d 290, 295 (S.D.N.Y. 2008).

A. Mr. Morel Is the Prevailing Party.

A “prevailing party” is one who “secure[s] a judgment on the merits or a court-ordered

consent decree.” Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t of Health & Human Res.,

532 U.S. 598, 600 (2001); see also Ritchie v. Gano, 754 F. Supp. 2d 605, 607 (S.D.N.Y. 2010)

(following Buckhannon in Copyright Act context); Philadelphia Stock Exch. v. Int’l Sec. Exch.,

Inc., No. 05 Civ. 5390, 2005 WL 2923519, at *2 (S.D.N.Y. Nov. 2, 2005) (same). Mr. Morel is

unquestionably the prevailing party in this action.

Mr. Morel, an individual photojournalist based in Haiti, has overcome a litigation onslaught

unleashed by well-heeled litigants who, in Agence France Presse’s (“AFP”) case, initiated a failed

federal lawsuit against him seeking a declaratory judgment designed to strip him of his rights in the

photographs he took under dire circumstances. AFP, after willingly infringing Mr. Morel’s

copyright, demanded compensatory and punitive damages from Mr. Morel because he had the

temerity to advise third parties (entirely accurately) that AFP had infringed his copyright. AFP

attacked Mr. Morel’s Copyright Act and DMCA claims on both a motion to dismiss and a motion

for summary judgment. Both motions failed. AFP interposed defenses that this Court determined

were (1) “fatally flaw[ed],” (2) regurgitations of the “same arguments that Judge Pauley . . . already

considered and rejected,” (3) based on arguments that “would be a gross expansion of the terms of

the Twitter TOS” and “wholly ignore[d] those portions of the Twitter TOS that are directly contrary


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to its position,” and (4) “present[ed] the Court with a false dichotomy.” (Opinion, dated Jan. 14,

2013 (“1/14/13 Op.”), ECF No. 192, at 20-22.)

Getty Images, Inc. (“Getty Images,” and together with AFP, “Counterclaim Defendants” or

“Defendants”) joined in the unsuccessful motion to dismiss Mr. Morel’s claims under the Copyright

Act and the DMCA. Getty Images advanced a defense under the DMCA’s Safe Harbor provision,

only to abandon it after its unsuccessful motion for summary judgment on that issue. (1/14/13 Op.

at 25-31; Proposed Joint Pretrial Report, ECF No. 259, Ex. A at 5.) Both Defendants

unsuccessfully moved for summary judgment on Mr. Morel’s claims arising under the Copyright

Act and DMCA and erroneously claimed that there was insufficient evidence to support a finding

that each acted willfully. (1/14/13 Op. at 43; Joint Mem. of Law in Support of Summ. J., ECF No.

130, at 41-45.)

For eight days starting November 13, 2013, this Court conducted a jury trial during which

the jury heard from nine witnesses. Except for Mr. Morel, they were all representatives of the

Defendants. Following trial, the jury unanimously found that AFP and Getty Images willfully

infringed Mr. Morel’s rights in his photographs under the Copyright Act. (See Final Verdict Form,

ECF No. 323-9, at 3.) The jury awarded Mr. Morel (1) actual damages in the amount of

$303,889.77, and (2) the maximum damages allowed by statute for each of the eight Photos-at-

Issue, or $1.2 million in total. (Order, ECF No. 305.) The jury found that AFP and Getty Images

violated both sections 1202(a) and 1202(b) of the DMCA. Those violations were “not innocent,”

the jury found, awarding Mr. Morel an additional $20,000. (Final Verdict Form, ECF No. 323-9, at

7.) The jury therefore determined that AFP and Getty Images’ conduct fell squarely within the most

egregious category of misconduct under both the Copyright Act and the DMCA. After Mr. Morel


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elected to receive statutory damages, the Court entered judgment in favor of Mr. Morel in the

amount of $1,220,000. (See Amended Judgment, ECF No. 307, at 1-2.)

AFP and Getty Images subsequently moved under Federal Rules of Civil Procedure 50 and

59(a) for judgment as a matter of law, a new trial or remittitur (the “Post-Trial Motions”). (See ECF

Nos. 313-315.) In ruling on the Post-Trial Motions, the Court upheld the jury’s verdicts, finding

sufficient evidence “from which the jury could have concluded that Defendants’ infringement (and

particularly AFP’s) was not just willful but reflected a gross disregard for the rights of copyright

holders.” (Mem. & Order, ECF No. 324, at 28; see also id. at 7-12 (summarizing evidence of

Defendants’ willfulness).) The Court determined that “[m]uch of the same evidence” supporting

the finding of willfulness also supported the jury’s conclusions that AFP violated DMCA §§

1202(a) and (b) and that Getty Images violated DMCA § 1202(a).1 (Id. at 13.) The Court rejected

every other argument advanced by Defendants in their attempt to overturn the jury’s verdicts,

including that there must be “some correlation” between actual damages and statutory damages, that

the actual damages awarded were unduly speculative, and that the statutory damages awarded were

intrinsically excessive. (Id. at 21-29.) The Court affirmed the damages that the jury had awarded.

(Id. at 30.)

This overwhelming victory favors an award to Mr. Morel. See Crown Awards, Inc. v.

Discount Trophy & Co., 564 F. Supp. 2d 290, 295 (S.D.N.Y. 2008) (awarding fees where plaintiff’s

copyright claims survived motions to dismiss and for summary judgment, where plaintiff defeated

defendant’s counterclaim, and where plaintiff prevailed at trial); Klinger v. Conan Doyle Estate

1 The Court, however, overturned the jury’s conclusion that Getty Images also violated DMCA § 1202(b),

holding that only AFP possessed the knowledge necessary for violating that section. (Id. at 17.)


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Ltd., 761 F.3d 789, 791 (7th Cir. 2014) (awarding attorney’s fees to prevailing plaintiff because

otherwise “[plaintiff] will have lost money” in challenging infringement).

In addition, Mr. Morel’s successful defense against AFP’s claim that it did not infringe Mr.

Morel’s copyright warrants an award of attorney’s fees and costs. See Klinger, 761 F.3d at 791. As

Judge Posner wrote in Klinger,

[A]s a consequence of the successful defense of an infringement suit the defendant is entitled to a “very strong” presumption in favor of receiving attorneys’ fees, in order to ensure that an infringement defendant does not abandon a meritorious defense in situations in which “the cost of vindication exceeds the private benefit to the party.” For without the prospect of such an award, an infringement defendant might be forced into a nuisance settlement or deterred altogether from exercising its rights.

Id. (quoting Assessment Tech. of Wis., LLC v. WIREdata, Inc., 361 F.3d 434, 437 (7th Cir. 2004)).

B. Defendants’ Infringement Was Willful.

The jury’s finding that Defendants willfully infringed Mr. Morel’s copyright, together with

this Court’s denial of Defendants’ motions to overturn that finding, justify an award of attorney’s

fees. See Kepner-Tregoe, Inc. v. Vroom, 186 F.3d 283, 289 (2d Cir. 1999). “The court’s award of

attorney’s fees under the Copyright Act, 17 U.S.C. § 505, is also justified based on the court’s

finding of willfulness and is in line with the statutory goal of deterrence.” Id.; accord U2 Home

Entm’t, Inc. v. Hong Wei Int’l Trading, Inc., No. 04 Civ. 6189, 2008 WL 3906889, at *17 (S.D.N.Y.

Aug. 21, 2008). “An award of attorneys’ fees and costs to U2 Home is appropriate in this case, in

light of the Defendants’ willful conduct.” Id. “An award of attorney’s fees is justified, inter alia,

where the infringement was willful, as here.” Getaped.com Inc. v. Cangemi, 188 F. Supp. 2d 398,

406 (S.D.N.Y. 2002); accord Yash Raj Films (USA) Inc. v. Movie Time Video USA, Inc., No. 04

Civ. 4107, 2007 WL 2572109, at *4 (E.D.N.Y. July 26, 2007).


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The jury found that AFP and Getty Images’ infringement of Mr. Morel’s copyright in the

eight Photos-at-Issue was willful, and the Court upheld that finding. (Mem. & Order, ECF No. 324,

at 7, 9; see also Trial Tr. at 1080:23-1081:3.) AFP downloaded Mr. Morel’s photographs and

authorized them for distribution on AFP’s wire to AFP’s customers without seeking or obtaining

Mr. Morel’s consent, without following AFP’s guidelines for using photographs from social media,

and without taking any steps to verify the name of the photographer. (See, e.g., Mem. & Order,

ECF No. 324, at 7-8; Trial Tr. at 346:7-346:10; 346:14-346:17; 265:21-265:25; 266:1-266:3; 278:1-

278:8; 287:23-288:8.) This Court found:

AFP concededly became aware, on January 13, that the pictures it had taken from Suero’s Twitter feed had actually been taken by Morel. It also knew, at that point in time, that it did not have permission to use [Mr. Morel’s] photographs, given that Morel had never granted such permission. Nonetheless, AFP did not cease distributing the photographs; to the contrary, it issued a caption correction identifying Morel as the photographer and continued to make them available on its feed.

(Mem. & Order, ECF No. 324, at 8 (internal citations omitted).)

The jury also found that Getty Images willfully violated Mr. Morel’s copyright and held

Getty Images jointly and severally responsible for the full statutory damages awarded. This Court

affirmed in its post-verdict decision that Getty Images did not implement the caption change it

received from AFP replacing the name of the photographer associated with the Photos-at-Issue to

Mr. Morel. To compound the harm inflicted, Getty Images continued selling Mr. Morel’s

photographs – wrongfully crediting someone else as the photographer – for weeks after it received

AFP’s kill notice. (See id. at 9; Trial Exs. 264C and 265C (listing dozens of licenses sold to

customers after Getty Images received the kill notice).) Although Andreas Gebhard, Getty Images’

Picture Desk Manager in New York, saw AFP’s “Change of Caption Notice” directing Getty to


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identify Daniel Morel (or, in one instance, David Morel) as the photographer, Mr. Gebhard claimed

that he never looked to see to whom the first round of photographs were credited. (Trial Tr. at

538:16-539:14; see also Trial Tr. at 677:10-677:11.) As this Court found, Mr. Gebhard’s admitted

“failure to search for or remove those Suero-credited images from Getty’s website” was sufficient

evidence of willfulness. (Mem. & Order, ECF No. 324, at 10.)

C. AFP Was Improperly Motivated in Commencing This Lawsuit.

Improper motivation in bringing a lawsuit weighs heavily in favor of an award of attorney’s

fees and costs. Baker v. Urban Outfitters, Inc., 431 F. Supp. 2d 351, 357 (S.D.N.Y. 2006). A party

is considered to be improperly motivated where the claims it asserted were “not brought because of

[their] inherent merit.” Torah Soft Ltd. v. Drosnin, No. 00 Civ. 5650, 2001 WL 1506013, at *5

(S.D.N.Y. Nov. 27, 2001). “A party that knowingly gambles on an unreasonable legal theory in

order to achieve a secondary gain – in this case, the leveraging of a settlement – is indeed

improperly motivated.” Id.; see also Video-Cinema Films, Inc. v. Cable News Network, Inc., No. 98

Civ. 7128, 2003 WL 1701904, at *4-5 (S.D.N.Y. Mar. 31, 2003) (awarding attorney’s fees where

“[p]laintiff’s conduct was nothing more than an obvious effort to use the Copyright Act to secure

payment from Defendants for their fair use of the film footage”).

AFP initiated this action, seeking a declaratory judgment that it did not violate Mr. Morel’s

rights in the Photos-at-Issue. In its Complaint, AFP contended that Mr. Morel had granted AFP an

unfettered license to use, copy, license, sell, and distribute his photographs for profit – simply by

posting his photographs on his own TwitPic page. (See Complaint, ECF No. 1, ¶ 17.) AFP also

asserted a claim for commercial defamation, alleging that Mr. Morel, through his attorney, “made

statements of fact concerning [AFP] and [AFP]’s business that are false and defamatory.” (Id. ¶

26.) Specifically, AFP alleged that Mr. Morel defamed AFP by stating to “numerous third parties,


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including AFP’s subscribers, that AFP [had] infring[ed] upon Mr. Morel’s photographs and that

AFP did not have a license to distribute Mr. Morel’s photographs.” (Id. ¶ 27.) AFP sought to

enjoin Mr. Morel and his counsel from stating what this Court and the jury eventually determined to

be true statements and demanded that Mr. Morel pay AFP “nominal, special, general compensatory

and punitive damages . . . .” (Id. ¶ 33.)

AFP’s motion in limine to suppress evidence of the prior procedural history of this case

made it unequivocally clear that it brought this baseless claim against Mr. Morel to prevent Mr.

Morel and his counsel from asserting his rights in his own photographs. AFP proudly asserted that,

once the defamation claim accomplished the goal of gagging Mr. Morel and his attorney, they

dropped the claim:

Both counts [for declaratory judgment and for commercial defamation] were pleaded in response to Mr. Morel and his prior counsel’s inflammatory correspondence and communications to AFP customers. After the filing of the complaint, the complained-of conduct ceased, so AFP stipulated to dismissal of the commercial defamation count.

(Mem. of Law in Support of AFP’s Mot. in Limine to Exclude Evid. and Argument Regarding the

Procedural History of This Case, ECF No. 239, at 2.)

In other words, AFP’s goal was purely one of intimidation: to prevent Mr. Morel from

asserting his rights and reaching out to third parties who had acquired the misappropriated

photographs from the wrong-doing agency, AFP. Once AFP determined that its extra-judicial

mission was accomplished, it dropped its specious claim for punitive and other damages. Mr.

Morel respectfully submits that such a motivation – brazenly acknowledged by the principal

wrongdoer in this case – provides an additional basis for an award of attorney’s fees.


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D. AFP’s Claims and Defenses Were Objectively Unreasonable.

Objective unreasonableness is “a factor that should be given substantial weight in

determining whether an award of attorneys’ fees is warranted.” Matthew Bender & Co., Inc. v. W.

Publ’g Co., 240 F.3d 116, 122 (2d Cir. 2001). A finding of objective unreasonableness may,

without more, be sufficient justification for an award of attorney’s fees. See Crown Awards, Inc. v.

Disc. Trophy & Co., Inc., 564 F. Supp. 2d 290, 294 (S.D.N.Y. 2008); Vargas v. Transeau, No. 04

Civ. 9772, 2008 WL 3164586, at *2 (S.D.N.Y. Aug. 6, 2008), aff’d, 352 F. App’x 458 (2d Cir.

2009).

Unreasonableness may arise “both in the factual and in the legal components of the case.”

Fogerty, 510 U.S. at 534 n.19; see also Crown Awards, 564 F. Supp. 2d at 296. A “consistent lack

of evidentiary support for [a] claim typically will render it objectively unreasonable”; bad faith or

frivolousness is not required. Vargas, 2008 WL 3164586, at *2 (awarding attorney’s fees to

defendants because plaintiff presented a “utter lack of evidentiary support” in favor of her claims);

Williams v. Crichton, 891 F. Supp. 120, 121 (S.D.N.Y. 1994) (awarding fees to defendants where

court found plaintiff’s claim objectively unreasonable even though it was not made in bad faith or

frivolous).

Defendants advanced a series of objectively unreasonable defenses and justifications in the

hope that they would wear down Mr. Morel. From AFP’s unsupportable reading of the Twitter

terms of service and Getty Images’ abandoned claim that Getty is the equivalent of an internet

service provider to Defendants’ collective and persistent assertions that they were not infringers and

could not be found liable for willful behavior, a significant majority of Defendants’ excuses had no

basis in fact or in law. Accordingly, Defendants should be required to pay the attorney’s fees

incurred in overcoming their tissue-thin, but repeatedly advanced, claims and defenses.


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E. The Public Interest and Goals of Compensation and Deterrence Favor an Award of Attorney’s Fees.

“The Copyright Act’s principal purpose ‘is to encourage the origination of creative works by

attaching enforceable rights to them.’” Crown Awards, 564 F. Supp. 2d at 295 (quoting Matthew

Bender, 240 F.2d at 122).

The purpose of the Copyright Act is to encourage people to devote themselves to intellectual and artistic creation by granting authors the exclusive right to the fruits of their labor. Thus a successful suit for copyright infringement involves more than just the vindication of private property rights, for if the Act were not enforced by private suits, the incentives Congress established to encourage authorship would have little effect. One way Congress sought to ensure that the Copyright Act would be enforced was to provide for discretionary awards of costs and attorneys fees. An award of attorney’s fees helps to ensure that all litigants have equal access to the courts to vindicate their statutory rights.

Quinto v. Legal Times of Washington, Inc., 511 F. Supp. 579, 581 (D.D.C. 1981) (internal citations

omitted); see also Oboler v. Goldin, 714 F.2d 211, 213 (2d Cir. 1983) (an award of attorney’s fees

“assures equal access to courts, provides an economic incentive to challenge infringements, and

penalizes the losing party”); Crown Awards, 564 F. Supp. 2d at 295 (awarding attorney’s fees

“encourage[s] the parties to bring meritorious claims and therefore [helps] demarcate the boundaries

of copyright law as clearly as possible in order to maximize the public exposure to valuable works”)

(citations and quotations omitted).

Awarding attorney’s fees in this case is consistent with these principles. Mr. Morel is an

individual with limited means. In contrast, Defendants are massive organizations that have been

relentless in their use of seemingly boundless resources to drive up Mr. Morel’s attorney’s fees.

AFP is one of the three major news wire services in the world; Getty Images is the leading provider

of digital images worldwide and is worth $3.3 billion. (See Trial Tr. at 241:8-241:13, 514:1-514:9.)


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AFP and Getty Images should not be allowed to exercise that power against Mr. Morel or other

individuals who dare to stand up for their rights. An award of attorney’s fees in this case – while

still relatively insignificant in comparison to Defendants’ respective finances – will help prevent

“copyright infringements from going unchallenged where the commercial value of the infringed

work is small and there is no economic incentive to challenge an infringement through expensive

litigation.” Quinto, 511 F. Supp. at 581; see also Crown Awards, 564 F. Supp. 2d at 296 (“an award

of attorneys’ fees would ensure that this particular Defendant would not escape from litigation

relatively unscathed”).

The Seventh Circuit’s recent decision in Klinger v. Conan Doyle Estate is instructive. In

Klinger, the plaintiff litigated against the estate of Sir Arthur Conan Doyle, author of the Sherlock

Holmes mysteries. The amount in controversy – $5,000 – was dwarfed by the cost of pursuing

justice. The Court remarked on the practical reality that, in instances like the case before it, “it is

more cost-effective to simply capitulate than to fight, even when the alleged claim is of dubious

merit.” Klinger, 761 F.3d at 791 (internal quotations omitted). In awarding plaintiff his appellate

legal fees, the Court found that plaintiff had “performed a public service.” Id. at 792. The same

result should follow here.

An award of attorney’s fees is particularly appropriate in this case, where Defendants

asserted to the jury that photojournalists are entitled to nothing more than the fee dictated by the

biggest photo agencies, even when those agencies have appropriated the work without the

photojournalist’s approval. Defendants argued to the jury that, once they were caught red-handed,

Mr. Morel should have accepted the $20,000 they supposedly would have paid him if they had

sought his approval in the first instance. (Trial Tr. at 935:11-935:14, 950:11-950:13; see also Post-

Trial Motions, ECF No. 314, at 22-23.)


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In the Defendants’ view of the world, photojournalists should have no say in the matter of

licensing and the fees to which they are entitled, but rather should be happy with a forced licensing

fee, dictated by the behemoths in the industry, even when those agencies steal the photographers’

work. In Klinger, the Seventh Circuit awarded attorney’s fees against a litigant that, like the

Defendants here, believed it should be able to dictate what a claimant should receive: “It’s time the

[opponent], in its own self-interest, changed its business model.” 761 F.3d at 792. By awarding

attorney’s fees in this case, Mr. Morel submits that this Court similarly will encourage the

Defendants – and other would-be infringers – to change their business model.

II. MR. MOREL IS ENTITLED TO AN AWARD OF ATTORNEY’S FEES UNDER THE DMCA.

Section 1203(b)(5) provides that in an action to recover for violations of the DMCA, the

court, “in its discretion, may award reasonable attorney’s fees to the prevailing party.” 17 U.S.C.

§ 1203(b)(5). “In deciding whether to award attorneys’ fees under the DMCA, the Court may

consider . . . the same four factors [as] when evaluating [a] motion for attorneys’ fees brought under

17 U.S.C. § 505.” Dahn World Co., Ltd. v. Chung, No. 06–2170, 2009 WL 277603, at *2 (D. Md.

Feb. 5, 2009) (citation omitted); see also Tylor v. Welch, No. 13–00458, 2014 WL 1415006, at *9

(D. Haw. Apr. 11, 2014) (analyzing the same factors for fees under both the Copyright Act and

DMCA and awarding fees to the prevailing party).

Therefore, for the reasons set forth above, Mr. Morel is also entitled to an award of

attorney’s fees under the DMCA.

III. THE FEES AND COSTS SOUGHT BY MR. MOREL ARE REASONABLE.

By this Motion, Mr. Morel seeks $2,357,608.00 in attorney’s fees for 3,829.5 of hours of

work performed by Willkie Farr & Gallagher (“Willkie Farr”) attorneys and staff between May


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2011 and September 2014, as well as fees incurred in making this Motion, which have not yet been

computed.2 Mr. Morel additionally seeks reimbursement of $33,698.90 in fees fronted by Willkie

Farr for work performed by outside legal consultants, $91,943.06 in costs incurred by Willkie Farr,

and $74,745.48 in costs incurred by the Hoffman Law Firm. Prior to her termination as Mr.

Morel’s counsel, Ms. Hoffman represented Mr. Morel “on a contingency fee basis of 25%,” and Mr.

Morel was obligated to pay Ms. Hoffman all costs and disbursements. (Letter from B. Hoffman to

D. Morel, dated Mar. 5, 2010 (“3/5/2010 Letter”) (Ex. A), at 1.)

For the reasons set forth below, the costs and fees sought by Mr. Morel under section 505 of

the Copyright Act and section 1203(b)(5) of the DMCA are reasonable.

A. The Amount of Attorney’s Fees Sought by Mr. Morel Is Reasonable.

In the Second Circuit, attorney’s fees awards are computed by multiplying the attorney’s

reasonable hourly rate by the number of hours reasonably expended. Arbor Hill Concerned Citizens

Neighborhood Ass’n v. Cnty of Albany, 522 F.3d 182, 183 (2d Cir. 2007); Bergerson v. N.Y. State

Office of Mental Health, 652 F.3d 277, 289 (2d Cir. 2011). The product of this multiplication is

known as the “presumptively reasonable fee.” Arbor Hill, 522 F.3d at 183.

When calculating a “presumptively reasonable fee,” a court should determine “what a

reasonable, paying client would be willing to pay” by applying the market rates “prevailing in the

community for similar services by lawyers of reasonably comparable skill, experience and

reputation.” Id. at 184; Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998). Factors

considered include, but are not limited to: (1) “the time and labor required”; (2) “the novelty and

2 Once fully briefed and argued, Mr. Morel’s counsel will submit a supplemental declaration regarding the costs

and fees incurred in making this fee application, which are also recoverable from Defendants. See, e.g., Miroglio S.P.A. v. Conway Stores, Inc., 629 F. Supp. 2d 307, 314 (S.D.N.Y. 2009) (awarding fees incurred for hours spent preparing the application for costs and fees under the Copyright Act); J.S. Nicol, Inc. v. Peking Handicraft, Inc., No. 03 Civ. 1548, 2008 WL 4613752, at *6 (S.D.N.Y. Oct. 17, 2008) (same).


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difficulty of the questions”; (3) “the level of skill required to perform the legal service properly”;

(4) “the attorney’s customary hourly rate”; (5) “the results obtained”; (6) “the experience,

reputation, and ability of the attorneys”; (7) the “undesirability” of the case; and (8) “awards in

similar cases.” Arbor Hill, 522 F.3d at 186 n.3. The court may also rely on its own knowledge of

private firms’ current hourly rates. Miele v. N.Y. State Teamsters Conf. Pension & Ret. Fund, 831

F.3d 407, 409 (2d Cir. 1987).

Significantly, “the most critical factor is the degree of success obtained” by the prevailing

party. Hensley v. Eckerhardt, 461 U.S. 424, 436 (1983); J.S. Nicol, 2008 WL 4613752, at *3.

Where the prevailing party “has obtained excellent results, his attorney should recover a fully

compensatory fee. Normally this will encompass all hours reasonable expended on the litigation . .

. .” Hensley, 461 U.S. at 435. The award “should not be reduced simply because the plaintiff failed

to prevail on every contention raised in the lawsuit. Litigants in good faith may raise alternative

legal grounds for a desired outcome . . . . The result is what matters.” J.S. Nicol, 2008 WL

4613752, at *6.

Here, both the amount of work performed by Mr. Morel’s counsel and the billing rates

employed are reasonable. Mr. Morel first met with Barbara Hoffman of the Hoffman Law Firm in

February 2010, and they entered into a retainer agreement in or around March 2010. (See 3/5/2010

Letter (Ex. A).) Ms. Hoffman appeared in this litigation on April 20, 2010, when Mr. Morel

answered AFP’s Complaint and asserted counterclaims against AFP, Getty Images, CBS, ABC, and

Turner Broadcasting. Ms. Hoffman’s work included, but was not limited to, extensive legal

research, drafting Mr. Morel’s Rule 26 disclosures, opposing Defendants’ motions to dismiss and

for summary judgment, preparing for and deposing six fact witnesses, and preparing Mr. Morel’s

document productions.


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Joseph T. Baio of Willkie Farr first became involved with this matter on or about May 19,

2011. (See Declaration of Joseph T. Baio, dated October 3, 2014 (“Baio Declaration” or “Baio

Decl.”), ¶ 5; Letter from J. Baio to D. Morel, dated May 19, 2011 (Ex. B).) Mr. Baio filed a Notice

of Appearance on August 30, 2011. (See Notice of Appearance, ECF No. 90.) During the

discovery phase of the litigation, Willkie Farr assisted with storage of digital files and allowed Ms.

Hoffman’s legal assistant to use its electronic databases to prepare for depositions. (Baio Decl. ¶ 7.)

Mr. Baio himself prepared for and deposed seven fact witnesses. (Id.)

Mr. Baio continued to assist Ms. Hoffman in the prosecution of Mr. Morel’s case until Mr.

Morel terminated Ms. Hoffman’s engagement as counsel on January 24, 2013. (Id. ¶ 8.)

Thereafter, Mr. Baio served as lead counsel of record for Mr. Morel, and continues to do so up to

and including the present day. (Id. ¶¶ 8, 12.)

After taking over as lead counsel, Mr. Baio and Willkie Farr’s work on this matter included,

but was not limited to, extensive legal research, review of depositions and document productions,

drafting pre- and post-trial motions, drafting various sections of the parties’ Pretrial Report and

Appendices, preparing for and conducting the eight-day jury trial held in November 2013, and

responding to Defendants’ various post-verdict motions that were resolved by this Court on August

13, 2014. (Id. ¶ 11.)

Willkie Farr’s contemporaneous monthly time records, describing the work performed on

this matter by Willkie Farr attorneys, legal assistants, and staff, are attached as Exhibit G. These

records identify the hourly fees accrued in connection with this litigation and, for each entry,

specify “the date, the hours expended, and the nature of the work done.” Marion S. Mishkin Law

Office v. Lopalo, No. 13 Civ. 2699, 2014 WL 4192071, at *4 (2d Cir. Aug. 26, 2014) (quoting N.Y.

State Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983)); see also


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Baio Decl. ¶ 15. Each timekeeper recorded his or her time contemporaneously in tenths of hours

and provided a detailed description of the services rendered. (Id. ¶ 15.)

Mr. Morel seeks to recover fees and costs from Defendants for 3,829.5 hours of work by

Willkie Farr attorneys and legal assistants, as set forth in the Billing Summary, which is attached as

Exhibit E.3 (See also Baio Decl. ¶ 16.) The hours accrued were both necessary and reasonable in

order to fully litigate this case. (Id. ¶ 17.) The hours worked produced a significant victory for Mr.

Morel, who not only prevailed at trial, but again more recently when this Court upheld the jury’s

verdict in its decision on Defendants’ post-trial motions. (Id.; see Point I.A, supra.)

The billing rates for the Willkie Farr attorneys and legal assistants who worked on this

matter are set forth in the Billing Summary (Ex. E).4 These rates are reasonable, as they are

equivalent or comparable to the prevailing rates charged by similarly experienced litigators at other

international law firms practicing in the Southern District of New York. Gierlinger, 160 F.3d at

882; Miele, 831 F.2d at 409 (“The [U.S. Supreme] Court has made clear that the ‘lawyers of

reasonably comparable skill, experience, and reputation’ it had in mind are those of the private bar.

3 Although all Willkie Farr attorneys and staff who billed to this matter are listed in the firm’s contemporaneous

time records (Ex. G), Mr. Morel is seeking reimbursement from Defendants only for work performed by those who devoted 10 or more hours of time to this matter, as indicated the Billing Summary (Ex. E).

4 In accordance with the terms of Willkie Farr’s retainer agreement with Mr. Morel, Mr. Morel has not paid Willkie Farr for any hourly fees or the majority of costs incurred during the firm’s representation of him to date. (See Retainer Agr. (Ex. C) at 2; Baio Decl. ¶¶ 9-10.) Nonetheless, Mr. Morel is entitled to recover fees commensurate with (1) the actual hours worked by Willkie Farr attorneys and legal assistants at their customary market rates, and (2) costs actually incurred during the firm’s engagement. See Miele, 831 F.2d at 409 (holding that “prevailing market rates” are “fully applicable” to fee awards for public service legal work, even if the party seeking fees charged its client less than a comparable private firm would have for the same services); see also In re 114 Tenth Ave. Assoc., Inc., No. 05-60099, 2010 WL 3304294, at *1 (Bankr. S.D.N.Y. Aug. 20, 2010) (awarding attorney’s fees to party despite fact that she had not “shown that she has actually expended cash for attorneys’ fees by paying counsel”). Although the Court has “has some discretion in determining the hourly rate ‘prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation,’ that discretion must be exercised on the basis of rates charged to clients of private law firms.” Miele, 831 F.2d at 409 (quoting Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984)). Moreover, Defendants AFP and Getty Images are wealthy agencies – not individuals of limited means like Mr. Morel – and thus should not be entitled to the benefit of a discount.


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‘The rates charged in private representations may afford relevant comparisons.’”) (quoting Blum,

465 U.S. at 896 n.11); see also Baio Decl. ¶¶ 18-19. According to the 2013 National Law Journal

Billing Survey, published by American Lawyer Media in December 2013 (the “Survey”), the largest

law firms based in New York charged $815 to $1,195 per hour for their partners and $595 to $1,050

per hour for their experienced associates in the most recent year for which data was available.5 (See

Survey (Ex. H).) The average rate charged for all associates ranged from $340 to $615 per hour.

(Id.) Furthermore, this matter involved novel and complex issues of law, particularly in the realm

of the DMCA, for which experienced counsel was required. Indeed, Mr. Morel’s deep-pocketed

opponents AFP and Getty Images retained firms comparable to Willkie Farr in skill, expertise, and

rates charged. According to the Survey, counsel for AFP, Venable LLP, charged as much as $1,075

per hour for its partners and $660 per hour for its associates in the last year for which data was

available. (Id. at 13.)

Willkie Farr also made efforts to limit the fees incurred by Mr. Morel. (See Baio Decl. ¶

20.) In particular, Willkie Farr made a conscious effort to limit the amount of work performed by

partners by delegating the majority of work to experienced associates, whose billing rates are

significantly less than partners’, and by staffing the matter leanly. (Id. ¶¶ 17, 20.) Willkie Farr

legal assistants routinely performed substantive work under the direction and supervision of these

associates, including but not limited to: (1) preparing for and second-chairing depositions; (2)

editing, cite-checking, and bluebooking legal motions and briefs; (3) conducting factual analyses of

deposition testimony and documents produced in discovery; and (4) preparing exhibits and other

documents for trial. (Id. ¶ 20.)

5 Excluding one outlier firm that charged up to $1,800 per hour for its most senior partners. (See Survey (Ex. H)

at 5.)


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B. The Amount Sought by Mr. Morel for Fees Incurred by Outside Consultants Is Reasonable.

During Willkie Farr’s representation of Mr. Morel, the firm incurred $31,751.40 in fees for

work performed by an independent legal consultant, Stephen Spadaro of Magna Legal Services

LLC (“Magna”). Mr. Spadaro’s biography is attached as Exhibit I to the Baio Declaration. During

the course of his engagement, Mr. Spadaro (with the assistance of Lauren Gregory, another Magna

employee) created demonstratives that were used during opening and closing arguments at trial.

(Baio Decl. ¶ 22.) He also attended all days of trial and assisted the Willkie Farr team with

presenting exhibits and demonstratives to the courtroom and jury. (Id.) Mr. Spadaro performed all

tasks at the direction and under the supervision of Mr. Morel’s attorneys, including Mr. Baio, and

Willkie Farr paid Magna’s invoice in a timely manner. (See id. ¶¶ 22-24.)

Willkie Farr also incurred $1,947.50 for Mr. Morel’s share of the fees billed by the parties’

jointly retained trial technology consultant, Trial Graphix. (Id. ¶¶ 25-26; see also Trial Graphix

Invoice (Ex. K).) The parties rented audiovisual equipment (including a screen, ELMO, and

various cables and wiring) for the courtroom for the duration of trial, enabling the jury and

witnesses to better view and understand the exhibits presented. (Id. ¶ 25.) Willkie Farr paid Mr.

Morel’s share of Trial Graphix’s fees in a timely manner. (Id. ¶ 27.)

Magna and Trial Graphix’s fees were reasonably incurred in Willkie Farr’s prosecution of

Mr. Morel’s claims and are of the kind ordinarily compensated when a prevailing party is awarded

attorney’s fees. “Lawyers often use litigation support specialists and receive reimbursement for

such services when awarded attorneys’ fees.” J.S. Nicol, Inc. v. Peking Handicraft, Inc., No. 03

Civ. 1548, 2008 WL 4613752, at *16 (S.D.N.Y. Oct. 17, 2008); see also DiBella v. Hopkins, 407 F.

Supp. 2d 537, 540 (S.D.N.Y. 2005) (awarding fees for expenses associated with “[c]omputers,


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computer graphics, digitized documents, and other technological advancements” where they were

used to “aid in the efficient and effective presentation of evidence”); In re Visa Check/Mastermoney

Antitrust Litig., 297 F. Supp. 2d 503, 525 (E.D.N.Y. 2003) (following the “common practice in this

circuit” and awarding fees for “litigation and trial support services”), aff’d, 396 F.3d 96 (2d Cir.);

Cornell Univ. v. Hewlett-Packard Co., No. 01 Civ. 1974, 2009 WL 1405208, at *2 (N.D.N.Y. May

15, 2009) (awarding fees incurred for trial graphics consultant).

C. The Amount of Costs Sought by Mr. Morel Is Reasonable.

The Copyright Act allows for the recovery of “full costs” as a matter of the court’s

discretion, see 17 U.S.C. § 505, and courts “routinely award costs to the prevailing party in

copyright cases.” Nat’l Football League v. PrimeTime 24 Joint Venture, 131 F. Supp. 2d 458, 484

(S.D.N.Y. 2001) (quoting Antenna Television, A.E. v. Aegean Video, Inc., No. 95 Civ. 2328, 1996

WL 298252 at *14 (E.D.N.Y. Apr. 23, 1996)). The DMCA similarly provides for the award of

costs. 17 U.S.C. § 1203(b)(4).

Mr. Morel seeks to recover $91,943.06 in costs incurred by Willkie Farr, as set forth in the

Cost Summary attached as Exhibit L. The costs summarized in Exhibit L are also individually

itemized in the firm’s Cost Detail Report, annexed as Exhibit M.6 The costs and expenses include

fees for court reporters, translators, obtaining deposition and trial transcripts, telephone and

conference services, postage, messenger and overnight delivery services, word processing,

duplicating and reproduction, supplies, electronic data acquisition (including obtaining court

documents from Pacer), and electronic data storage. (See Baio Decl. ¶ 29.)

6 Although all costs and disbursements incurred in connection with this litigation are itemized in the firm’s Cost

Detail Report (Ex. M), Mr. Morel is seeking reimbursement from Defendants only for those costs and disbursements listed in the Cost Summary chart (Ex. L).


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These costs are reasonable because they are not associated with routine office overhead, but

rather are identifiable “out-of-pocket expenses incurred by attorneys and ordinarily charged to their

clients.” J.S. Nicol, 2008 WL 4613752, at *18 (S.D.N.Y. Oct. 17, 2008) (emphasis in original)

(quoting LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 762 (2d Cir. 1998)); U.S. Football League v.

Nat’l Football League, 887 F.2d 408, 416 (2d Cir. 1989). In addition, they are all costs that Willkie

Farr routinely charges to its clients – and for which Mr. Morel expressly agreed to be billed in his

retainer with the firm. (Baio Decl. ¶ 30; see also Retainer Agr. (Ex. C).) Many of these expenses

were incurred in connection with preparing for and prosecuting the eight-day jury trial, as discussed

above. (Baio Decl. ¶ 30.)

A substantial portion of the costs incurred by Willkie Farr are for legal research by its

associates and legal assistants on Westlaw, Lexis, and Bloomberg Law. (See Cost Summary (Ex.

L).) These charges should be reimbursed by Defendants because Willkie Farr is a firm that

“pass[es] these expenses on to clients as separately chargeable disbursements.” J.S. Nicol, 2008

WL 4613752, at *18 (compensating plaintiff for his attorneys’ legal research fees because the firm

“treated Westlaw charges as a disbursement billed separately from its attorneys’ hourly rates and

separately from its general overhead”); see also Arbor Hill Concerned Citizens Neighborhood Ass’n

v. Cnty. of Albany, 369 F.3d 91, 97-98 (2d Cir. 2004) (“If [plaintiff’s counsel] normally bills its

paying clients for the cost of online research services, that expense should be included in the fee

award.”); Baio Decl. ¶ 30.

Mr. Morel also seeks to recover $74,745.48 in costs and expenses incurred by the Hoffman

Law Firm during its representation of Mr. Morel. Attached as Exhibit N are true and correct copies

of invoices to Mr. Morel from the Hoffman Law Firm and Futterman Dupree Dodd Croley Maier

LLP, sent to Mr. Baio by Ms. Hoffman. (See Baio Decl. ¶ 31.) The costs incurred by Ms. Hoffman


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include fees for depositions, word processing, experts, court reporters, process servers, translators,

postage, messenger and courier service fees, court fees, duplicating and reproduction fees, and

travel expenses.

Mr. Morel achieved significant success in this action, not only for himself, but in furtherance

of the objectives of the Copyright Act and DMCA. The fees and costs incurred in the course of his

defense and counterclaims were reasonable and appropriate to the needs and circumstances of the

case. Accordingly, it is respectfully submitted that, based upon the documentation and information

in the accompanying declarations of Mr. Morel’s counsel, costs and attorney’s fees should be

awarded as set forth in those declarations.


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CONCLUSION

For the foregoing reasons, Defendant and Counterclaim Plaintiff Daniel Morel respectfully

requests that his Motion for Award of Attorney’s Fees and Costs be granted in its entirety.

Dated: New York, New York October 3, 2014 Respectfully submitted,

By: /s/ Joseph T. Baio Joseph T. Baio [email protected] Roger Netzer [email protected] Emma J. James

[email protected] Teri M. Seigal [email protected]

WILLKIE FARR & GALLAGHER LLP

787 Seventh Avenue New York, New York 10019 (212) 728-8000 Counsel for Defendant and Counterclaim Plaintiff Daniel Morel


Documents

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW … · Case 1:10-cv-02730-AJN Document 339 Filed 10/03/14 Page 5 of 27 Defendant and Counterclaim Plaintiff Daniel Morel submits