`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`JAIME KEELING,
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`Plaintiff,
`
`v.
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`NEW ROCK THEATER PRODUCTIONS,
`LLC, EVE HARS, and ETHAN GARBER,
`
`Defendants.
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`USDCSDNY
`DOCUMENT
`ELECI'RONICAILY FILED
`DOC#: __--------
`DATE FILED: l:\...J" \\, He
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`10 Civ. 9345
`
`OPINION
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`This is a copyright dispute between plaintiff Jaime Keeling and defendants Eve Hars,
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`Ethan Garber, and their production company, New Rock Theater Productions, LLC. The
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`work at issue is a theater production called Point Break LIVE!
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`A jury trial was concluded in this case on December 7, 2012. 1""'he jury found in
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`Keeling's favor, concluding that
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`• Keeling is the sole-owner of Point Break LIVE!
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`• Point Break IJVE!wa"> a parody, and thus made fair use, of the film Point Break
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`• All three defendants infringed Keeling's copyright (though not willfully)
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`• Keeling suffered $50,000 in damages
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`• Defendants' profits over five years of infhnging activity totaled $200,000
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`Plaintiff has moved for attorneys fees totaling $84,500. 1 ....he motion is denied.
`1
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`
`
`Case 1:10-cv-09345-TPG-GWG Document 131 Filed 03/11/13 Page 2 of 3
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`The Copyright Act provides that, in the court's discretion, costs and a reasonable
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`attorney's fee may be awarded to the prevailing party in an infringement action. 17 U.S.C. §
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`505. In exercising that discretion the court considers "(1) the frivolousness of the non
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`prevailing party's claims or defenses; (2) the party's motivation; (3) whether the claims or
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`defenses were objectively unreasonable; and (4) compensation and deterrence." Bryant v.
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`Media Right Prod's, Inc., 603 F.3d 135, 144 (2d Cir. 2010). In that calculus, the court
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`gives substantial weight to the third factor, whether the claims or defenses were objectively
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`unreasonable. Id.
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`In this case the defenses were not unreasonable. It is true that defendants' initial legal
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`contention, that a work of parody was not protectable unde:~ copyright law, was entirely
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`lacking in merit. If this had formed the entirety of defendants' case, the court might take a
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`dimmer view of the reasonableness of their defenses.
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`But defendants had other arguments. Defendants contended that Point Break LIVE!
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`was, in fact, a joint work of Keeling and a man named Jami(~ Hook. Hook testified at the
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`trial and the testimony he gave might indeed have supported this theory. The jury,
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`however, evidently found his testimony not to be credible.
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`Keeling goes further and suggests that defendants knew that Hook was not a true
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`coauthor all along, and that his testimony was "inherently incredible" - and thus could not
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`form the basis for an objectively reasonable defense - because it was internallv
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`contradictory. In fact, Keeling argues that Hook's testimony was "a fabrication" that
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`-2
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`
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`Case 1:10-cv-09345-TPG-GWG Document 131 Filed 03/11/13 Page 3 of 3
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`defendants knew to be false and that they tried to shield from scrutiny by the plaintiff by
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`making Hook unavailable to them before trial.
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`In the court's view, however, it is far from clear that Hook's account, and the defense
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`based upon it, were concocted with the bad faith that Keeling ascribes to it. It is true that
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`Hars wrote, in 2007, the she believed Keeling's story and thought that Hook "is basically
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`trying to steal the credit/rights for something ITaime] conceived and created." But this
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`email was sent years before this lawsuit began, and there is ample evidence from which to
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`conclude that defendants' attitudes towards Hook and Keeling, and their respective
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`credibility, have changed considerably since dlen. And, taking Hook's testimony at face
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`value, it did lend some evidentiary support to the defendants' contention that Hook
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`coauthored Point Break LIVE! This defense was not objectively unreasonable.
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`Similarly, in the court's view, defendants raised a legitimate factual issue regarding
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`whether Garber actually oWfled or controlled New Rock and, accordingly, whether he
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`could be vicariously liable for the other defendants' infringement. The jury, of course,
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`concluded that he was liable, but Garber's defense was not objectively unreasonable.
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`Therefore, because defendants' case was not objectivelnreasonable, and none of the
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`other Bryant factors are strongly implicated, plaintiffs motion for attorney's fees is denied.
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`So ordered.
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`Dated: New York, New York
`March 11,2013
`
`d
`~
`. J~~~~___________~_
`
`trhomas P. Griesa
`United States DistrictJudge
`
`-3
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