Walsh v. Townsquare Media, Inc.

Background

The court had previously granted Townsquare Media, Inc.’s motion under Federal Rule of Civil Procedure 12(c) and dismissed Rebecca Fay Walsh’s copyright-infringement action after finding that Townsquare’s use of the photograph was protected by the fair-use doctrine. The court had also denied Walsh’s request for reconsideration and reserved the question of attorneys’ fees under § 505 of the Copyright Act, which allows a court to award reasonable fees to the prevailing party.

The parties later consented to the public filing of settlement communications. The court reviewed those communications, the parties’ briefing, the record, and the applicable law.

Reasoning

Section 505 gives district courts broad discretion to award fees after considering the totality of the circumstances. The court considered objective unreasonableness, frivolousness, motive, and the need for compensation and deterrence.

The court relied on its earlier conclusion that all of the fair-use factors favored Townsquare. It found that Townsquare had used the photograph in an article reporting on a post disseminated by Cardi B, rather than using the photograph merely to display its content. The court stated that the case was not a close fair-use question and that Walsh’s counsel had maintained arguments that disregarded the facts of the case. The court therefore found that Walsh, through her counsel, had pursued the litigation in an objectively unreasonable manner.

The court also found improper motive and bad faith in the settlement approach. Before the earlier motion practice, Walsh’s counsel demanded $25,000, then reduced the demand by $250 after Townsquare counteroffered $250, without addressing Townsquare’s explanation or providing a basis for the demand. The court compared that demand with its assessment that a license for a photograph of Cardi B likely would have cost between $175 and $499, and stated that even a hypothetical $1,000 licensing cost would produce expected damages of about $5,000 under the court’s discussion of statutory damages. The court found no reasonable basis for a $24,750 demand.

Finally, the court concluded that an award would promote compensation and deterrence. It also considered the court’s stated concern that Walsh’s counsel had repeatedly brought questionable and factually similar copyright cases in the district, including cases disposed of on fair-use or other grounds.

Disposition

Judge Vernon S. Broderick granted Townsquare’s motion for attorneys’ fees under § 505 of the Copyright Act. The order decided Townsquare’s entitlement to seek fees but not the amount. Townsquare was directed to submit documentation supporting its estimated fees and costs by May 17, 2022, and Walsh was directed to file any objections to the amount by May 31, 2022. The clerk was directed to terminate the open motion at docket number 29.