Erickson Productions Inc v. Kraig R Kast

Background

Erickson Productions, Inc. and Jim Erickson sued Kraig R. Kast over three copyrighted photographs that appeared on a website for Kast’s business. A jury previously found Kast liable for contributory and vicarious copyright infringement and initially awarded $450,000 in statutory damages for willful infringement. After appeals and a remand for a new trial on willfulness and statutory damages, a second jury found that Kast’s contributory infringement was willful and awarded $45,000—$15,000 for each photograph. The court entered judgment on May 24, 2024.

Erickson moved for attorneys’ fees and costs under section 505 of the Copyright Act for work performed after the Ninth Circuit’s April 2023 remand. Erickson also asked the court to reaffirm earlier fee awards, increase the 2017 award by 30% to account for delay in payment, and include all fee and cost awards in an amended judgment. Kast opposed the motion and was representing himself.

Entitlement to Additional Fees

The court rejected Kast’s argument that the Ninth Circuit’s order requiring each side to bear its own appellate costs barred an additional fee award. The court explained that the appellate order concerned costs under Federal Rule of Appellate Procedure 39, which does not include attorneys’ fees available under a separate federal fee-shifting statute such as the Copyright Act.

The court also held that the earlier fee awards were not open to reconsideration because Kast had not appealed them. The court found Erickson to be the prevailing party because Erickson established Kast’s liability and obtained a damages award. Kast’s request for $2.471 million in fees and costs was denied. His request for documents concerning Erickson’s settlements, finances, and agreements with counsel was also denied because he did not explain their relevance to the fee motion.

After considering the Copyright Act’s discretionary factors, including Erickson’s success, the reasonableness of Kast’s positions, compensation, deterrence, and the non-frivolous nature of the lawsuit, the court found that an additional fee award was appropriate. The court noted that Erickson had succeeded in reestablishing willful infringement, although the new damages award was substantially lower than the earlier award. The court also found that Kast had taken several unreasonable positions after the 2023 remand, including filing motions that lacked sufficient legal or factual support.

Amount of Fees and Costs

Erickson requested $252,401 in attorneys’ fees for work after the remand and $1,376.51 in costs. Kast did not challenge the requested hours or hourly rates. The court approved the current hourly rates for the attorneys and paralegal who performed the work.

Using the lodestar method—which calculates fees by multiplying reasonable hours by a reasonable hourly rate—the court reduced the requested attorneys’ fees by 30%. The court found that a significant portion of the work for the second trial duplicated work for which Erickson had already received fees. The time records also listed 504.8 hours without summarizing the hours by timekeeper, making it difficult to determine how much work two of the timekeepers performed. The court therefore awarded $176,680.70 in attorneys’ fees.

The court awarded the full $1,376.51 requested for photocopying and printing trial materials, finding those expenses taxable under the applicable costs statute.

Time-Delay Adjustment and Disposition

The court denied Erickson’s request to increase the 2017 fee award by 30%. The cases Erickson cited allowed courts to use current rates or enhance historical rates when deciding a fee request in the first instance; they did not support changing a fee award that had already been entered.

The court denied Erickson’s request to submit additional records for time spent on the current fee motion because Erickson had not filed a timely reply brief. The court granted in part and denied in part Erickson’s motion for attorneys’ fees and costs, awarded $176,680.70 in attorneys’ fees and $1,376.51 in costs, for a total of $178,057.21, and stated that it would issue an amended judgment.