Jerome v. Twentieth Century-Fox Film Corp.

LEIBELL, District Judge.

An application has been submitted by defendant for an allowance of attorney’s fees of $30,000, under § 40 of the Copyright Law, 17 U.S.C.A. § 40 . This suit for a copyright infringement was tried before me for three days in February 1946. A number of depositions had been taken before the trial. After briefs and proposed findings were submitted and on July 25, 1946, I filed my opinion, findings of fact and conclusions of law, and dismissed the complaint on the merits. 67 F.Supp. 736 . In my opinion I passed upon certain novel special defenses and decided the questions thus presented contrary to the defendant’s contentions.

It was apparent during the trial that this litigation had developed a very bitter feeling between opposing counsel. The examinations before trial had included everyone who had had anything to do with this matter, even the attorneys.

The plaintiff is a woman of advanced years who contracted to license the defendant to use her musical composition “Sweet Rosie O’Grady” in a motion picture of that name for the sum of $5,000, of which her publishers, Mills Music Corp., were to get half. The agreement was made in January 1943. The picture was exhibited in October 1943 and grossed almost $3,000,000.

For one reason or another questions arose that resulted in defendant’s postponing or refusing to pay her the agreed sum. Finally her attorney brought this suit for infringement. A lot of feuding could have been avoided if a more generous and less technical attitude had been taken by the defendant. Under the circumstances, I can very well understand how plaintiff was driven to some litigation, although the theory of this action for infringement was not supported by the proof.

I believe that it would be unfair to make plaintiff carry the burden of defendant’s attorneys’ fees, even in an amount that could be considered not excessive. A trial court in considering applications for an allowance of attorney’s fees to the successful party in a copyright infringement case exercises a sound discretion, considering all the facts peculiar to the case at bar. See authorities cited under § 40 of 17 U.S.C.A. In the exercise of such discretion I deny the application of defendant for the allowance of an attorney’s fee as part of defendant’s costs.

A judgment dismissing the complaint on the merits and allowing defendant $212.32 for its costs as taxed, with no allowance for attorney’s fees, has been approved and is being filed herewith.