FEINBERG, Circuit Judge
Plaintiff Donald Davis claimed that a 1960 nationwide telecast, participated in by defendants, infringed his copyrights in a dramatization of Edith Wharton's famous novel, "Ethan Frome." I decided the issue of liability in plaintiff's favor in Davis v. E. I. DuPont de Nemours & Co., 240 F.Supp. 612 (S.D.N.Y. 1965), and thereafter, upon submission of the issue of statutory damages on stipulated facts, awarded plaintiff $25,000, 249 F.Supp. 329 (S.D.N.Y.1966). Reference to both opinions should be made for a more complete understanding of the case. This opinion is the third in this litigation, and, it is hoped, the last—at least at the trial level. It concerns plaintiff's novel request for interest on the judgment from the date of the infringing telecast and his application for an award of a counsel fee of $75,000.
As to the former, plaintiff argues that infringement of copyright is a tort and that, therefore, he is entitled to pre-judgment interest as a matter of law. However, plaintiff's unstated premise that pre-judgment interest must be granted in all tort recoveries is too sweeping. It is true that there has been a slow development away from the common-law rule denying pre-judgment interest, but it is still awarded only in specified situations.
As to counsel fees, section 116 of Title 17 U.S.C. provides that "the court may award to the prevailing party a reasonable attorney's fee as part of the costs." As a guide to the exercise of the trial court's discretion in awarding a fee, the Second Circuit has observed that "[s]ince such a provision for attorney's fees is at variance with the usual practice in litigation before our courts, * * * it has been sparingly used and the amounts awarded modest." Orgel v. Clark Boardman Co., 301 F.2d 119, 122 (2d Cir.), cert. denied, 371 U.S. 817, 83 S.Ct. 31, 9 L.Ed.2d 58 (1962) (reducing damages from $12,849.32 to $6,424.66 and plaintiff's counsel fee from $10,000 to $5,000). Defendants urge that, indeed, "a fee allowance is rarely made where there are unsettled issues of law and fact." Norbay Music, Inc. v. King Records, Inc., 249 F.Supp. 285, 289 (S. D.N.Y.1966) (fee denied). However, imposition of a counsel fee upon defendant in Norbay could well have been inequitable since plaintiff's own delinquency in filing proper notice under the Copyright Act excusably, if mistakenly, led defendant into the belief that it had a complete defense to suit. In fact, the district court initially accepted defendant's view, although its construction of the statutory provision was eventually reversed on appeal. Norbay Music, Inc. v. King Records, Inc., 290 F.2d 617 (2d Cir. 1961), reversing 185 F.Supp. 253 (S.D.N.Y.1960). In view of the significant reliance the present defendants place in their brief on the Norbay trial court's refusal on remand to grant an attorney's fee, it is interesting to observe that had that court instead assessed such a fee, it would probably have been upheld; in remanding, the court of appeals stated that the district court, in its discretion, might grant a reasonable attorney's fee. 290 F.2d at 620.
Examination of the cases denying counsel fees, relied on by the district court on the Norbay remand (249 F.Supp. at 289), is likewise significant. In each, save one,
If the courts have indeed applied a more restrictive rule when defendants prevail than when plaintiffs succeed, a possible explanation may be that an award to a defendant is somewhat more "at variance with the usual practice in litigation before our courts * * *." See Orgel v. Clark Boardman Co., 301 F.2d at 122. One aim of our system of jurisprudence is to prevent costs from becoming so burdensome that litigants with what they believe to be meritorious claims are discouraged from bringing suit. See Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 235, 85 S.Ct. 411, 13 L.Ed.2d 248 (1964). Awarding a counsel fee to a plaintiff against whom some injury has been done would seem less out of harmony with this policy than an award to a winning defendant. Be that as it may, I will decide this application not on the basis of whether the award is sought by a successful plaintiff, rather than a successful defendant, but upon other general principles found in the relevant decisions.
In the present case, the principal issue to all concerned was whether plaintiff's copyrights had been infringed by the teleplay. Defendants' contentions that the Davis copyrights were deficient were not central and for the most part were technical. The issue of infringement, not the validity of the copyrights, forced plaintiff to sue and formed defendants' main defense. Nor were defendants innocent tortfeasors. Abortive negotiations between plaintiff and Susskind on behalf of Talent, instructions by Talent officers to its employees Babbin and Gellen to delete Davis material from the teleplay, and written notice sufficiently in advance of the broadcast all demonstrate that defendants acted after deliberation and that at least Susskind and Talent recognized that in all likelihood Davis had valid copyrights in "Ethan Frome." These facts are sufficient to justify an award of counsel fees in light of the cases cited immediately above. Moreover, they resemble very closely the facts in the famous Letty Lynton case, in which Judge Learned Hand, speaking for the Second Circuit, sanctioned an attorney's fee award, Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2d Cir.), cert. denied, 298 U.S. 669, 56 S.Ct. 835, 80 L.Ed. 1392 (1936), fixing it at $33,000 in a later proceeding, 106 F.2d 45, 55 (2d Cir. 1939), aff'd, 309 U.S. 390, 60 S.Ct. 681, 84 L.Ed. 825 (1940).
Defendants argue that even if some attorney's fee is appropriate, an allocation should be made among defendants and among the issues. Most significant of defendants' contentions are: (1) No defendant should be liable for legal fees for work done on the damage phase of the case because of the novelty of the issues there raised and plaintiff's unreasonably high monetary demand, and (2) DuPont and BBDO should not be
In fixing an attorney's fee, I have taken several factors into account. See Sheldon v. Metro-Goldwyn Pictures Corp., 106 F.2d 45, 55 (2d Cir. 1939), aff'd, 309 U.S. 390, 60 S.Ct. 681, 84 L.Ed. 825 (1940) (L. Hand, J.); Cloth v. Hyman, 146 F.Supp. 185, 193-194 (S.D.N.Y. 1956). Plaintiff's lawyers exhibited a high degree of skill. The amount of work they did during more than six years was considerable, occupying over 2,000 hours of partners' time,
Settle order on notice.
Kitchens of Sara Lee, Inc. v. Nifty Foods Corp., 266 F.2d 541 (2d Cir. 1959), also cited in Norbay, denied counsel fees to both parties on appeal. However, on remand, final judgment was entered for plaintiff for $8,000 plus $6,500 attorneys' fees and $800 costs. See Civil No. 7292, W.D.N.Y., Jan. 29, 1960. The judgment was satisfied, not appealed, id., March 9, 1960.