       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206           2       Bridgeport Music et al. v.       Nos. 02-6521; 03-5738
   ELECTRONIC CITATION: 2004 FED App. 0297P (6th Cir.)           Dimension Films et al.
               File Name: 04a0297p.06

                                                          DIMENSION FILMS, et al.,          -
UNITED STATES COURT OF APPEALS                                            Defendants,       -
                                                          NO LIMIT FILMS LLC,               -
              FOR THE SIXTH CIRCUIT                                                         -
                _________________                                  Defendant-Appellee.      -
                                                                                           N
        No. 02-6521             X                               Appeal from the United States District Court
BRIDGEPORT MUSIC , INC.;         -                            for the Middle District of Tennessee at Nashville.
WESTBOUND RECORDS, INC.,         -                           No. 01-00412—Thomas A. Higgins, District Judge.
                                 -    Nos. 02-6521;
        Plaintiffs-Appellants, -      03-5738                                Argued: April 28, 2004
SOUTHFIELD MUSIC , INC.;          >
                                 ,
NINE RECORDS, INC.,              -                                   Decided and Filed: September 7, 2004
                    Plaintiffs, -
                                 -                       Before: GUY and GILMAN, Circuit Judges; BARZILAY,
          v.                     -                                           Judge.*
                                 -
                                                                              _________________
DIMENSION FILMS; MIRAMAX -
                                 -
FILM CORP .,                     -                                                  COUNSEL
                  Defendants, -
                                                         ARGUED: Richard S. Busch, KING & BALLOW,
NO LIMIT FILMS LLC,              -                       Nashville, Tennessee, for Appellants. Robert L. Sullivan,
         Defendant-Appellee. -                           LOEB & LOEB, Nashville, Tennessee, for Appellee.
                                 -                       ON BRIEF: Richard S. Busch, D’Lesli M. Davis, KING &
                                 -                       BALLOW, Nashville, Tennessee, for Appellants. Robert L.
        No. 03-5738              -
BRIDGEPORT MUSIC , INC.;                                 Sullivan, John C. Beiter, LOEB & LOEB, Nashville,
                                 -                       Tennessee, for Appellee.
SOUTHFIELD MUSIC , INC.;         -
NINE RECORDS, INC.,              -
        Plaintiffs-Appellants, -
WESTBOUND RECORDS, INC.,         -
                                 -
                     Plaintiff, -
                                 -
          v.                     -
                                                             *
                                 -                            The Honorable Judith M. Barzilay, Judge, United States Court of
                                                         International Trade, sitting by designation.

                            1
Nos. 02-6521; 03-5738              Bridgeport Music et al. v.           3    4       Bridgeport Music et al. v.           Nos. 02-6521; 03-5738
                                      Dimension Films et al.                         Dimension Films et al.

                       _________________                                                                         I.
                           OPINION                                              The claims at issue in this appeal were originally asserted
                       _________________                                     in an action filed on May 4, 2001, by the related entities
                                                                             Bridgeport Music, Southfield Music, Westbound Records,
  RALPH B. GUY, JR., Circuit Judge. Plaintiffs, Bridgeport                   and Nine Records, alleging nearly 500 counts against
Music, Inc., Westbound Records, Inc., Southfield Music, Inc.,                approximately 800 defendants for copyright infringement and
and Nine Records, Inc., appeal from several of the district                  various state law claims relating to the use of samples without
court’s findings with respect to the copyright infringement                  permission in new rap recordings. In August 2001, the
claims asserted against No Limit Films.1 This action arises                  district court severed that original complaint into 476 separate
out of the use of a sample from the composition and sound                    actions, this being one of them, based on the allegedly
recording “Get Off Your Ass and Jam” (“Get Off”) in the rap                  infringing work and ordered that amended complaints be
song “100 Miles and Runnin’” (“100 Miles”), which was                        filed.2
included in the sound track of the movie I Got the Hook Up
(Hook Up). Specifically, Westbound appeals from the district                   The claims in this case were brought by all four plaintiffs:
court’s decision to grant summary judgment to defendant on                   Bridgeport and Southfield, which are in the business of music
the grounds that the alleged infringement was de minimis and                 publishing and exploiting musical composition copyrights,
therefore not actionable. Bridgeport, while not appealing                    and Westbound Records and Nine Records, which are in the
from the summary judgment order, challenges instead the                      business of recording and distributing sound recordings. It
denial of its motion to amend the complaint to assert new                    was conceded at the time of summary judgment, however,
claims of infringement based on a different song included in                 that neither Southfield Music nor Nine Records had any
the sound track of Hook Up. Finally, Bridgeport, Southfield,                 ownership interest in the copyrights at issue in this case. As
and Nine Records appeal from the decision to award attorney                  a result, the district court ordered that they be jointly and
fees and costs totaling $41,813.30 to No Limit Films under 17                severally liable for 10% of the attorney fees and costs
U.S.C. § 505. For the reasons that follow, we reverse the                    awarded to No Limit Films.
district court’s grant of summary judgment to No Limit on
Westbound’s claim of infringement of its sound recording                       Bridgeport and Westbound claim to own the musical
copyright, but affirm the decision of the district court as to the           composition and sound recording copyrights in “Get Off Your
award of attorney fees and the denial of Bridgeport’s motion                 Ass and Jam” by George Clinton, Jr. and the Funkadelics.
to amend.                                                                    We assume, as did the district court, that plaintiffs would be
                                                                             able to establish ownership in the copyrights they claim.
                                                                             There seems to be no dispute either that “Get Off” was


                                                                                 2
    1
                                                                                   These are two of eleven appe als arising out of six related lawsuits
      All of plaintiffs’ claims against Miramax Film Corp. and Dimension     that have been assigned to this panel for hearing and decision (Nos. 02-
Films were dismissed with prejudice, pursuant to a settlement, on June 27,   6521, 03-5002, 03-5003, 03-5004, 03-5005, 03-5738, 03-5739, 03-5741,
2002.                                                                        03-5742 , 03-5744, 03-565 6).
Nos. 02-6521; 03-5738               Bridgeport Music et al. v.            5    6      Bridgeport Music et al. v.      Nos. 02-6521; 03-5738
                                       Dimension Films et al.                         Dimension Films et al.

digitally sampled or that the recording “100 Miles” was                        was copied, the pitch was lowered, and the copied piece was
included on the sound track of I Got the Hook Up. Defendant                    “looped” and extended to 16 beats. Kling states that this
No Limit Films, in conjunction with Priority Records,                          sample appears in the sound recording “100 Miles” in five
released the movie to theaters on May 27, 1998. The movie                      places; specifically, at 0:49, 1:52, 2:29, 3:20 and 3:46. By the
was apparently also released on VHS, DVD, and cable                            district court’s estimation, each looped segment lasted
television. Fatal to Bridgeport’s claims of infringement was                   approximately 7 seconds. As for the segment copied from
the Release and Agreement it entered into with two of the                      “Get Off,” the district court described it as follows:
original owners of the composition “100 Miles,” Ruthless
Attack Muzick (RAM) and Dollarz N Sense Music (DNSM),                                 The portion of the song at issue here is an arpeggiated
in December 1998, granting a sample use license to RAM,                            chord – that is, three notes that, if struck together,
DNSM, and their licensees. Finding that No Limit Films had                         comprise a chord but instead are played one at a time in
previously been granted an oral synchronization license to use                     very quick succession – that is repeated several times at
the composition “100 Miles” in the sound track of Hook Up,                         the opening of “Get Off.” The arpeggiated chord is
the district court concluded Bridgeport’s claims against No                        played on an unaccompanied electric guitar. The rapidity
Limit Films were barred by the unambiguous terms of the                            of the notes and the way they are played produce a high-
Release and Agreement. Bridgeport Music, Inc. v. Dimension                         pitched, whirling sound that captures the listener’s
Films LLC, 230 F. Supp.2d 830, 833-38 (M.D. Tenn. 2002).                           attention and creates anticipation of what is to follow.
Although Bridgeport does not appeal from this determination,
it is relevant to the district court’s later decision to award                 Bridgeport, 230 F. Supp.2d at 839. No Limit Films moved
attorney fees to No Limit Films.                                               for summary judgment, arguing (1) that the sample was not
                                                                               protected by copyright law because it was not “original”; and
  Westbound’s claims are for infringement of the sound                         (2) that the sample was legally insubstantial and therefore
recording “Get Off.”3 Because defendant does not deny it, we                   does not amount to actionable copying under copyright law.
assume that the sound track of Hook Up used portions of “100
Miles” that included the allegedly infringing sample from                        Mindful of the limited number of notes and chords
“Get Off.” The recording “Get Off” opens with a three-note                     available to composers, the district court explained that the
combination solo guitar “riff” that lasts four seconds.                        question turned not on the originality of the chord but, rather,
According to one of plaintiffs’ experts, Randy Kling, the                      on “the use of and the aural effect produced by the way the
recording “100 Miles” contains a sample from that guitar                       notes and the chord are played, especially here where copying
solo. Specifically, a two-second sample from the guitar solo                   of the sound recording is at issue.” Id. (citations omitted).
                                                                               The district court found, after carefully listening to the
                                                                               recording of “Get Off,” “that a jury could reasonably
                                                                               conclude that the way the arpeggiated chord is used and
    3                                                                          memorialized in the ‘Get Off’ sound recording is original and
      Sound recordings and their underlying musical compositions are
separate works with their o wn distinct cop yrights. See 17 U.S.C.             creative and therefore entitled to copyright protection.” Id.
§ 102 (a)(2), (7). Bridgeport M usic, Inc. v. Still N The W ater Publ’g, 327   (citing Newton v. Diamond, 204 F. Supp.2d 1244, 1249-59
F.3d 472 , 475 n.3 (6th Cir.), cert. denied, 124 S. Ct. 399 (2003)             (C.D. Cal. 2002)) (later affirmed on other grounds at 349 F.3d
(consolidated appeals from the dismissal of 19 of the 476 actions for lack
of personal jurisdiction).
Nos. 02-6521; 03-5738          Bridgeport Music et al. v.      7    8    Bridgeport Music et al. v.        Nos. 02-6521; 03-5738
                                  Dimension Films et al.                 Dimension Films et al.

591 (9th Cir. 2003)). No Limit Films does not appeal from           (1986). Summary judgment is appropriate when there are no
this determination.                                                 genuine issues of material fact in dispute and the moving
                                                                    party is entitled to judgment as a matter of law. FED . R. CIV .
   Turning then to the question of de minimis copying in the        P. 56(c).
context of digital sampling, the district court concluded that,
whether the sa mpli ng is examined under a                             In granting summary judgment to defendant, the district
qualitative/quantitative de minimis analysis or under the so-       court looked to general de minimis principles and emphasized
called “fragmented literal similarity” test, the sampling in this   the paucity of case law on the issue of whether digital
case did not “rise to the level of a legally cognizable             sampling amounts to copyright infringement. Drawing on
appropriation.” 230 F. Supp.2d at 841. Westbound argues             both the quantitative/qualitative and “fragmented literal
that the district court erred both in its articulation of the       similarity” approaches, the district court found the de minimis
applicable standards and its determination that there was no        analysis was a derivation of the substantial similarity element
genuine issue of fact precluding summary judgment on this           when a defendant claims that the literal copying of a small
issue.                                                              and insignificant portion of the copyrighted work should be
                                                                    allowed. After listening to the copied segment, the sample,
  On October 11, 2002, the district court granted summary           and both songs, the district court found that no reasonable
judgment to No Limit Films on the claims of Bridgeport and          juror, even one familiar with the works of George Clinton,
Westbound; dismissed with prejudice the claims of Southfield        would recognize the source of the sample without having
and Nine Records; denied as moot the motion of Bridgeport           been told of its source. This finding, coupled with findings
and Westbound for partial summary judgment on the issue of          concerning the quantitatively small amount of copying
copyright ownership; and entered final judgment accordingly.        involved and the lack of qualitative similarity between the
Bridgeport and Westbound appealed. The facts relevant to            works, led the district court to conclude that Westbound could
the earlier denial of Bridgeport’s motion to amend the              not prevail on its claims for copyright infringement of the
complaint will be discussed below. No Limit Films filed a           sound recording.
post-judgment motion for attorney fees and costs, which the
district court granted for the reasons set forth in its                Westbound does not challenge the district court’s
memorandum opinion and order of April 24, 2003.                     characterization of either the segment copied from “Get Off”
Bridgeport, Southfield Music, and Nine Records appealed             or the sample that appears in “100 Miles.” Nor does
from that award.                                                    Westbound argue that there is some genuine dispute as to any
                                                                    material fact concerning the nature of the protected material
                               II.                                  in the two works. The heart of Westbound’s arguments is the
                                                                    claim that no substantial similarity or de minimis inquiry
  The district court’s decision granting summary judgment is        should be undertaken at all when the defendant has not
reviewed de novo. Smith v. Ameritech, 129 F.3d 857, 863             disputed that it digitally sampled a copyrighted sound
(6th Cir. 1997). In deciding a motion for summary judgment,         recording. We agree and accordingly must reverse the grant
the court must view the evidence and reasonable inferences in       of summary judgment.
the light most favorable to the nonmoving party. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
Nos. 02-6521; 03-5738               Bridgeport Music et al. v.             9    10       Bridgeport Music et al. v.           Nos. 02-6521; 03-5738
                                       Dimension Films et al.                            Dimension Films et al.

A. Digital Sampling of Copyrighted Sound Recordings                             recording and that a digital sample from the copyrighted
                                                                                sound recording was used in this case.
  At the outset it is important to make clear the precise nature
of our decision. Our conclusions are as follows:                                  4. This case involves “digital sampling” which is a term of
                                                                                art well understood by the parties to this litigation and the
  1. The analysis that is appropriate for determining                           music industry in general. Accordingly, we adopt the
infringement of a musical composition copyright, is not the                     definition commonly accepted within the industry.
analysis that is to be applied to determine infringement of a
sound recording. We address this issue only as it pertains to                     5. Because of the court’s limited technological knowledge
sound recording copyrights.4                                                    in this specialized field, our opinion is limited to an instance
                                                                                of digital sampling of a sound recording protected by a valid
   2. Since the district court decision essentially tracked the                 copyright. If by analogy it is possible to extend our analysis
analysis that is made if a musical composition copyright were                   to other forms of sampling, we leave it to others to do so.
at issue, we depart from that analysis.5
                                                                                  6. Advances in technology6 coupled with the advent of the
   3. We would agree with the district court’s analysis on the                  popularity of hip hop or rap music have made instances of
question of originality if the composition copyright had been                   digital sampling extremely common and have spawned a
at issue. Having concluded that the statute requires a different                plethora of copyright disputes and litigation.
analysis for sound recording copyrights, however, we also
find that the requirement of originality is met by the fixation                   7. The music industry, as well as the courts, are best served
of sounds in the master recording. Only an actual physical                      if something approximating a bright-line test can be
copy of a master recording will be exactly the same as the                      established. Not necessarily a “one size fits all” test, but one
copyrighted sound recording. We assume that Westbound                           that, at least, adds clarity to what constitutes actionable
will be able to establish it has a copyright in the sound


                                                                                     6
                                                                                      “E.g., Terry Fryer, Sampling Jargon Illustrated, KEYB OAR D, June
    4                                                                           1988, at 66-73. First, the cost barrier to enter into the audio production
      Defendants claim tha t this argument is made for the first time on        arena is low d ue to the influx of affordab le digital record ing equipment.
app eal. Assuming without deciding that such is the case, we nonetheless        The combination of a microphone, digital audio equipment, consumer
exercise our discretion to entertain this argument due to the dearth of legal   audio equipment and an album or com pact disc co llection are the o nly
authority on this issue and the importance of the resolution of this issue      tools needed to produce commercial rap m usic. Second, utilizing samples
to the m usic industry.                                                         as the musical element of the song enables the producer to create
    5
                                                                                commercial rap music without any original musical accompaniment prior
      “In most copyright actions, the issue is whether the infringing work      to recording the vocals. T hird, using music samples saves a considerable
is substantially similar to the original wo rk. . . . The scope of inquiry is   amount of time when compared to the traditional recording methods
much narro wer when the work in question is a so und recording. The only        because another artist already record ed the underlying music. . . .”
issue is whether the actual sound recording has been used without               Stephen R. W ilson, Music Sam pling Law suits: Does L oop ing M usic
authorization. Substantial similarity is not an issue . . . .” Bradley C.       Samples Defeat the De Min imis Defense?, 1 Journal of High Technology
Rosen, Esq., 22 CAUSES OF ACT ION § 12 (2d ed . 2003).                          Law (JHT L) 179 n.9 (200 2) (citations omitted).
Nos. 02-6521; 03-5738         Bridgeport Music et al. v.      11   12    Bridgeport Music et al. v.       Nos. 02-6521; 03-5738
                                 Dimension Films et al.                  Dimension Films et al.

infringement with regard to the digital sampling of                     graphic, or sculptural works, including the
copyrighted sound recordings.                                           individual images of a motion picture or other
                                                                        audiovisual work, to display the copyrighted work
B. Analysis                                                             publicly; and
  We do not set forth the arguments made by Westbound                     (6) in the case of sound recordings, to perform the
since our analysis differs somewhat from that offered by the            copyrighted work publicly by means of a digital
plaintiff. Our analysis begins and largely ends with the                audio transmission.
applicable statute. Section 114(a) of Title 17 of the United
States Code provides:                                              Section 114(b) states:
    The exclusive rights of the owner of copyright in a                 (b) The exclusive right of the owner of copyright in a
  sound recording are limited to the rights specified by             sound recording under clause (1) of section 106 is limited
  clauses (1), (2), (3) and (6) of section 106, and do not           to the right to duplicate the sound recording in the form
  include any right of performance under section 106(4).             of phonorecords or copies that directly or indirectly
                                                                     recapture the actual sounds fixed in the recording. The
Section 106 provides:                                                exclusive right of the owner of copyright in a sound
                                                                     recording under clause (2) of section 106 is limited to the
    Subject to sections 107 through 122, the owner of                right to prepare a derivative work in which the actual
  copyright under this title has the exclusive rights to do          sounds fixed in the sound recording are rearranged,
  and to authorize any of the following:                             remixed, or otherwise altered in sequence or quality. The
                                                                     exclusive rights of the owner of copyright in a sound
      (1) to reproduce the copyrighted work in copies                recording under clauses (1) and (2) of section 106 do not
    or phonorecords;                                                 extend to the making or duplication of another sound
                                                                     recording that consists entirely of an independent fixation
      (2) to prepare derivative works based upon the                 of other sounds, even though such sounds imitate or
    copyrighted work;                                                simulate those in the copyrighted sound recording. The
       (3) to distribute copies or phonorecords of the               exclusive rights of the owner of copyright in a sound
    copyrighted work to the public by sale or other                  recording under clauses (1), (2), and (3) of section 106 do
    transfer of ownership, or by rental, lease, or lending;          not apply to sound recordings included in educational
                                                                     television and radio programs (as defined in section 397
      (4) in the case of literary, musical, dramatic, and            of title 47) distributed or transmitted by or through public
    choreographic works, pantomimes, and motion                      broadcasting entities (as defined by section 118(g)):
    pictures and other audiovisual works to perform the              Provided, That copies or phonorecords of said programs
    copyrighted work publicly;                                       are not commercially distributed by or through public
                                                                     broadcasting entities to the general public.
      (5) in the case of literary, musical, dramatic, and
    choreographic works, pantomimes, and pictorial,
Nos. 02-6521; 03-5738              Bridgeport Music et al. v.         13     14       Bridgeport Music et al. v.             Nos. 02-6521; 03-5738
                                      Dimension Films et al.                          Dimension Films et al.

   Before discussing what we believe to be the import of the                 in which the actual sounds fixed in the sound recording are
above quoted provisions of the statute, a little history is                  rearranged, remixed, or otherwise altered in sequence or
necessary. The copyright laws attempt to strike a balance                    quality.” In other words, a sound recording owner has the
between protecting original works and stifling further                       exclusive right to “sample” his own recording. We find much
creativity. The provisions, for example, for compulsory                      to recommend this interpretation.8
licensing make it possible for “creators” to enjoy the fruits of
their creations, but not to fence them off from the world at                   To begin with, there is ease of enforcement. Get a license
large. 17 U.S.C. § 115. Although musical compositions have                   or do not sample. We do not see this as stifling creativity in
always enjoyed copyright protection, it was not until 1971                   any significant way. It must be remembered that if an artist
that sound recordings were subject to a separate copyright. If               wants to incorporate a “riff” from another work in his or her
one were to analogize to a book, it is not the book, i.e., the               recording, he is free to duplicate the sound of that “riff” in the
paper and binding, that is copyrightable, but its contents.                  studio. Second, the market will control the license price and
There are probably any number of reasons why the decision                    keep it within bounds.9 The sound recording copyright holder
was made by Congress to treat a sound recording differently
from a book even though both are the medium in which an
                                                                                  8
original work is fixed rather than the creation itself. None the                   First, by clarifying the rights of a sound recording copyright owner
least of them certainly were advances in technology which                    in regard to d erivative works, Sectio n 114(b) makes it clear that the digital
made the “pirating” of sound recordings an easy task. The                    sampling of a cop yrighted sound recording must typically be licensed to
                                                                             avoid an infringement. Sec tion 11 4(b) states that:
balance that was struck was to give sound recording copyright
holders the exclusive right “to duplicate the sound recording                          The exclusive right of the owner of copyright in a sound
in the form of phonorecords or copies that directly or                            recording under [the section 106 right to prepare derivative
indirectly recapture the actual sounds fixed in the recording.”                   works] is limited to the right to prepare a derivative work in
17 U.S.C. § 114(b). This means that the world at large is free                    which the actual sounds fixed in the sound recording are
                                                                                  rearranged, remixed, or otherwise altered in sequence or qu ality.
to imitate or simulate the creative work fixed in the recording
so long as an actual copy of the sound recording itself is not                         The import of this language is that it does not matter how
made.7 That leads us directly to the issue in this case. If you                   much a digital sampler alters the actual sounds or whether the
cannot pirate the whole sound recording, can you “lift” or                        ordinary lay observer can or cannot recognize the song or the
“sample” something less than the whole. Our answer to that                        artist’s performance of it. Since the exclusive right encompasses
                                                                                  rearranging, remixing, or otherw ise altering the actual sounds,
question is in the negative.                                                      the statute by its own terms precludes the use of a substantial
                                                                                  similarity test.
  Section 114(b) provides that “[t]he exclusive right of the
owner of copyright in a sound recording under clause (2) of                  Susan J. Latham, Newton v. Diamond: Measuring the Legitimacy of
section 106 is limited to the right to prepare a derivative work             Unauthorized Compositional Sampling–A Clue Illuminated and
                                                                             Obscured, 26 Hastings Comm. & Ent. L.J. 119, 125 (2003) (footnotes
                                                                             omitted).

    7                                                                             9
      Needless to say, in the case of a recording of a musical composition         “Samplers should apply for the appropriate licenses, respect the
the imitator would have to clear with the holder of the composition          rights of copyright holders, and be respected in turn as equal creators,
cop yright.                                                                  Resp onsibility for obtaining clearance should fall to either the artist, the
Nos. 02-6521; 03-5738               Bridgeport Music et al. v.          15     16     Bridgeport Music et al. v.              Nos. 02-6521; 03-5738
                                       Dimension Films et al.                         Dimension Films et al.

cannot exact a license fee greater than what it would cost the                 recording is sampled, the part taken is something of value.11
person seeking the license to just duplicate the sample in the                 No further proof of that is necessary than the fact that the
course of making the new recording. Third, sampling is never                   producer of the record or the artist on the record intentionally
accidental. It is not like the case of a composer who has a                    sampled because it would (1) save costs, or (2) add something
melody in his head, perhaps not even realizing that the reason                 to the new recording, or (3) both. For the sound recording
he hears this melody is that it is the work of another which he                copyright holder, it is not the “song” but the sounds that are
had heard before. When you sample a sound recording you                        fixed in the medium of his choice. When those sounds are
know you are taking another’s work product.                                    sampled they are taken directly from that fixed medium. It is
                                                                               a physical taking rather than an intellectual one.
  This analysis admittedly raises the question of why one
should, without infringing, be able to take three notes from a                    This case also illustrates the kind of mental, musicological,
musical composition, for example, but not three notes by way                   and technological gymnastics that would have to be employed
of sampling from a sound recording. Why is there no de                         if one were to adopt a de minimis or substantial similarity
minimis taking or why should substantial similarity not enter                  analysis. The district judge did an excellent job of navigating
the equation.10 Our first answer to this question is what we                   these troubled waters, but not without dint of great effort.
have earlier indicated. We think this result is dictated by the                When one considers that he has 800 other cases all involving
applicable statute. Second, even when a small part of a sound                  different samples from different songs, the value of a
                                                                               principled bright-line rule becomes apparent. We would want
                                                                               to emphasize, however, that considerations of judicial
                                                                               economy are not what drives this opinion. If any
                                                                               consideration of economy is involved it is that of the music
                                                                               industry. As this case and other companion cases make clear,
                                                                               it would appear to be cheaper to license than to litigate.12
label, or bo th. Sam plers re alize that in the litigious environment of the
United States, there is nothing to be gained and much money potentially             11
to be lost by being a renegade. Surely some obscure materials will be                   “(A)ll samples from a record approp riate the work of the musicians
sampled and overlooked, but the process should proceed devoid of               who performed on that record. This enables the sampler to use a musical
recrimination and with the opp ortunity for money to be made by both the       performance without hiring either the musician wh o originally played it
sampler and those whom he sam ples.” D avid S anjek , “D on’t Have to DJ       or a different musician to play the music a gain. Thus sampling of records
No M ore”: Sampling and the “Autonomous” Creator, 10 C ardo zo A rts           . . . allows a producer of music to save money (by not hiring a musician)
& Ent. L.J. 607, 621 (19 92).                                                  without sacrificing the sound and phrasing of a live musician in the song.
                                                                               This practice poses the greatest danger to the musical profession because
    10                                                                         the musician is being replaced with himself.” Christopher D. Abramson,
        “Thus, it seems like the only way to infringe on a sound recording
is to re-record sounds from the original work, which is exactly the nature     Digital Sam pling and the R ecording Mu sician: A Proposal for
of digital sound sampling. Then the on ly issue becomes whether the            Legislative Protection, 74 N.Y.U. L. R EV . 1660, 1668 (1999) (footnote
defendant re-reco rded sound from the original. This suggests that the         omitted).
substantial similarity test is inapplicable to sound recordings.” Jeffrey R.        12
Houle, Digital Audio Sampling, Copyright Law and the A merican Mu sic                   “The current lack o f bright-line rules lead s to unp redictability,
Industry: Piracy or Just a Bad “RAP”?, 37 Loy. L. Rev. 879, 896                which may be one reason that so few sampling cases are brought to trial
(1992).                                                                        . . . . A cost-benefit analysis generally indicates that is is less expensive
Nos. 02-6521; 03-5738              Bridgeport Music et al. v.             17   18     Bridgeport Music et al. v.             Nos. 02-6521; 03-5738
                                      Dimension Films et al.                          Dimension Films et al.

  Since our holding arguably sets forth a new rule, several
other observations are in order. First, although we followed
no existing judicial precedent, we did not pull this                                added). By using the words “entirely of an independent
interpretation out of thin air.13 Several law review and text                       fixation” in referring to sound recordings which may imitate or
                                                                                    simulate the sounds of another, Congress may have intended that
writers, some of whom have been referenced in this opinion,                         a recording containing any sound s of ano ther rec ording would
have suggested that this is the proper interpretation of the                        constitute infringement. Thus, it would appear that any
copyright statute as it pertains to sound recordings.14 Since                       unauthorized use of a digital sam ple taken from ano ther’s
                                                                                    copyrighted recording would be an infringement of the
                                                                                    copyrighted recording.

for a samp ler to purchase a license before sampling (or se ttle a post-                 In fact, the copyright law specifically provides that the
sampling lawsuit) rather than take his chances in an expensive trial, the           owner of copyright in a sound recording has the exclusive right
outcome of which . . . is nearly impossible to predict with any degree of           to prepare a derivative work “in which the actual sounds fixed
certainty.” Steph en R. W ilson, Mu sic Sam pling La wsuits: Does Looping           in the sound rec ording are rearranged , remixed, or o therwise
Mu sic Sam ples Defeat the De Min imis Defense, 1 Journal of High                   altered in sequence or quality.” A recording that embodies
Technology Law (JH TL) 17 9, 187 n.97 (20 02).                                      samples taken from the sound recording of another is by
                                                                                    definition a ‘rearranged, remixed, or otherwise altered in
    13                                                                              sequence or qu ality.’
       W e have not addressed in detail any of the cases frequently cited
in these music copyright cases because in the main they involved                         It has been suggested that the strong protection implied by
infringement of the composition copyright and not the sound recording               the forego ing pro visions could be mitigated by a judicially
cop yright. Baxter v. MCA , Inc., 812 F.2d 421 (9th C ir. 198 7); Grand             applied standard which p ermits so me degree of de m inimis
Upright Music Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182                  copying or copying where the sampled portion of the resulting
(S.D.N.Y. 199 1); Jarvis v. A&M Records, 827 F. Supp. 282 (D.N.J.                   work is not sub stantially similar to the copied wo rk. For
1993); Williams v. Broadus, 60 U.S.P.Q.2d 1051 (S.D.N.Y. 20 01);                    example, a court could determine that the taking of a millisecond
Newton v. Diamond, 349 F.3d 59 1, 594-95 (9th Cir. 2003).                           of sound from another’s copyrighted recording, or the taking of
    14
                                                                                    a more extensive portion that has been modified to the point of
         2. Infringement of the Sound Recording                                     being completely unrecognizable or impo ssible to associate with
                                                                                    the copied recording, do es not constitute infringem ent. It is
         No know n court decisions are available at this time to help               believed, however, that the courts should take what appears to be
    determine the extent to which samples may be made of                            a rare oppo rtunity to follo w a “bright line” rule specifically
    copyrighted recordings without the permission of their owners.                  mandated by Congress. This would result in a substantial
    Certain provisions of the copyright law, however, do suggest                    reduction of litigation costs and uncertainty attendin g disputes
    that broader protection against unauthorized sampling may be                    over sampling infringem ent of so und recordings and would
    availab le for owners of sound recordings than for the owners of                prom ote a faster resolution of these d isputes.
    musical com positions that may be embodied in those sound
    recordings.                                                                         W hile the question whether an unauthorized use of a digital
                                                                                    samp le infringes a musica l composition ma y require a full
         For example, the copyright act states that, “The exclusive                 substantial similarity analysis, the question whether the use of a
    rights of the owner o f copyright in a sound recording . . . do not             samp le constitutes infringement of a sound recording could end
    extend to the making or duplication of another sound recording                  upon a determination that the sampler physically copied the
    that consists entirely of an independent fixation of other sound s,             copyr ighted sound recording of another. If the sampler
    even though such so unds imitate or simulate those in the                       physically copied any portion of another’s copyrighted sound
    copyrighted sound recording” [17 U.S.C. § 114 (b)] (e mph asis                  recording, then infringement should be found . If the sampler d id
Nos. 02-6521; 03-5738                Bridgeport Music et al. v.            19     20    Bridgeport Music et al. v.            Nos. 02-6521; 03-5738
                                        Dimension Films et al.                          Dimension Films et al.

digital sampling has become so commonplace and rap music                          of sampling that either go unnoticed or are ignored, one
has become such a significant part of the record industry, it is                  cannot come up with precise figures, but it is clear that a
not surprising that there are probably a hundred articles                         significant number of persons and companies have elected to
dealing with sampling and its ramifications. It is also not                       go the licensing route. Also there is a large body of pre-1971
surprising that the viewpoint expressed in a number of these                      sound recordings that is not protected and is up for grabs as
articles appears driven by whose ox is being gored. As is so                      far as sampling is concerned. Additionally, just as many
often the case, where one stands depends on where one sits.                       artists and companies choose to sample and take their
For example, the sound recording copyright holders favor this                     chances, it is likely that will continue to be the case.
interpretation as do the studio musicians and their labor
organization. On the other hand, many of the hip hop artists                        Third, the record industry, including the recording artists,
may view this rule as stifling creativity. The record                             has the ability and know-how to work out guidelines,
companies and performing artists are not all of one mind,                         including a fixed schedule of license fees, if they so choose.
however, since in many instances, today’s sampler is
tomorrow’s samplee. The incidence of “live and let live” has                        Fourth, we realize we are announcing a new rule and
been relatively high, which explains why so many instances                        because it is new, it should not play any role in the
of sampling go unprotested and why so many sampling                               assessment of concepts such as “willful” or “intentional” in
controversies have been settled.                                                  cases that are currently before the courts or had their genesis
                                                                                  before this decision was announced.
 Second, to pursue further the subject of stifling creativity,
many artists and record companies have sought licenses as a                          Finally, and unfortunately, there is no Rosetta stone for the
matter of course.15 Since there is no record of those instances                   interpretation of the copyright statute. We have taken a
                                                                                  “literal reading” approach. The legislative history is of little
                                                                                  help because digital sampling wasn’t being done in 1971. If
                                                                                  this is not what Congress intended or is not what they would
    not physically copy, then there could be no infringement (even                intend now, it is easy enough for the record industry, as they
    if the resulting reco rding substantially simulates or imitates the
    original recording).                                                          have done in the past, to go back to Congress for a
                                                                                  clarification or change in the law. This is the best place for
AL KOHN & BOB KOHN, KOHN ON MU SIC LICENSING 1486-87                              the change to be made, rather than in the courts, because as
(Aspen Law & Business 3d ed. 2002) (footnotes omitted).                           this case demonstrates, the court is never aware of much more
    15
                                                                                  than the tip of the iceberg. To properly sort out this type of
       “As a result of actual, as well as threatened, litigation in the area of   problem with its complex technical and business overtones,
digital sampling infringement, several developments have occurred.                one needs the type of investigative resources as well as the
Sampling clearinghouses serve as one recent outgro wth.                  These
companies are similar to publisher clearinghouses in that they are                ability to hold hearings that is possessed by Congress.
authorized by member copyright owners to clear samples for use on
albums acco rding to an agreed upon fee struc ture. In addition, record
companies and most music publishers have instituted certain licensing
policies as more and more artists routinely seek clearance for their
samples with the ho pe of avoiding litigation.” A. D ean Johnson, Mu sic          Sampling Infring ement Suits, 21 FLA . S T . U. L. R EV . 135, 163 (1993)
Cop yrights: The Need for an Appropriate Fair Use Analysis in Digital             (footnote omitted).
Nos. 02-6521; 03-5738              Bridgeport Music et al. v.          21    22   Bridgeport Music et al. v.        Nos. 02-6521; 03-5738
                                      Dimension Films et al.                      Dimension Films et al.

  These conclusions require us to reverse the entry of                       show justification for failing to move earlier.” Wade, 259
summary judgment on Westbound’s claims against No Limit                      F.3d at 459 (citing Duggins v. Steak ‘N Shake, Inc., 195 F.3d
Films.                                                                       828, 834 (6th Cir. 1999)).
                                  III.                                       A. Facts
   Bridgeport’s substantive appeal is from the denial of leave                 Plaintiffs commenced this action in May 2001, and filed an
to file a second amended complaint that would have asserted                  amended complaint in September 2001. In November 2001,
new claims of infringement based on the inclusion of a                       the district court entered a scheduling order which required
different song, called “How Ya Do Dat,” in the sound track of                that any motion to amend pleadings be filed far enough in
Hook Up.16 We review the denial of a motion to amend for                     advance of April 1, 2002, to allow briefing to be completed
abuse of discretion, except to the extent that it is based on a              by that date. Discovery was to be completed by May 21,
legal determination that the amendment would not withstand                   2002. On March 18, 2002, the district court extended the
a motion to dismiss. Wade v. Knoxville Utilities Bd., 259                    time for amending pleadings with the proviso that it would
F.3d 452, 459 (6th Cir. 2001). Leave to amend a pleading                     have to be done in time to avoid extending discovery beyond
shall be freely given “when justice so requires.” FED . R. CIV .             May 21, 2002.
P. 15(a).
                                                                               On April 15, 2002, plaintiffs’ counsel received a “cue
  Undue delay in filing, lack of notice to the opposing                      sheet” for Hook Up that apparently alerted Bridgeport to the
  party, bad faith by the moving party, repeated failure to                  presence of another song in which it held a copyright interest.
  cure deficiencies by previous amendments, undue                            Specifically, Bridgeport claims 37% interest in the
  prejudice to the opposing party, and futility of                           composition “How Ya Do Dat” (“How Ya”) under a Release
  amendment are all factors which may affect the decision.                   and Agreement dated October 21, 1998, that granted
  Delay by itself is not sufficient reason to deny a motion                  permission to use a sample from the composition “One of
  to amend. Notice and substantial prejudice to the                          Those Funky Things” in “How Ya.” While there was
  opposing party are critical factors in determining whether                 disagreement about whether discovery made available as
  an amendment should be granted.                                            early as October 2001 should have alerted Bridgeport of this
                                                                             claim, there is no dispute that the presence of “How Ya” was
Head v. Jellico Hous. Auth., 870 F.2d 1117, 1123 (6th Cir.                   readily observable from watching the movie. In fact, the
1989) (quoting Hageman v. Signal L.P. Gas, Inc., 486 F.2d                    magistrate judge noted that the “cue sheet” appears to be a list
479, 484 (6th Cir. 1973)). “When amendment is sought at a                    of credits from the end of the film.
late stage in the litigation, there is an increased burden to
                                                                               Plaintiffs moved to amend on April 19, 2002, and No Limit
                                                                             Films opposed the motion in a response filed on April 26,
    16
                                                                             2002. On May 6, 2002, the magistrate judge recommended
       The district court also denied plaintiffs leave to amend to add       that the motion be denied. Plaintiffs filed objections on May
claims against new parties arising from the inclusion of “100 M iles” in I   16, 2002, and defendant responded on May 30, 2002. The
Got the Hook Up. Plaintiffs have a bandoned an y appeal with respect to      discovery cutoff date, May 21, had passed, but the deadline
the denial of that reque st.
Nos. 02-6521; 03-5738          Bridgeport Music et al. v.     23    24   Bridgeport Music et al. v.        Nos. 02-6521; 03-5738
                                  Dimension Films et al.                 Dimension Films et al.

for completing depositions had been extended to June 14,              close of discovery would be prejudicial to defendants and
2002. But, the deadline for filing dispositive motions                unduly delay trial.
continued to be June 21, 2002. No Limit Films filed its
motion for summary judgment on that date. On August 14,                  After careful consideration of the entire record, the
2002, the district court entered its order overruling plaintiffs’     Court adopts and approves the Magistrate Judge’s Report
objections, denying plaintiffs’ motion to amend, and denying          and Recommendation. The plaintiffs’ objections are
plaintiffs’ further motion to certify the issue for appeal.           overruled. The interest of justice in this case requires
                                                                      that plaintiffs show good cause why the Court should
B. Analysis                                                           allow amendment of their complaint to add a claim and
                                                                      parties after the Court’s deadline for such amendments,
  Bridgeport maintains the district court abused its discretion       which the plaintiffs have failed to do.
by denying leave to amend on the grounds of unjustified
delay and in the absence of a finding of prejudice to the              To the extent that this brief discussion leaves doubt that a
defendant. It is true that, ordinarily, delay alone will not        finding of prejudice was made, we may sustain a denial of
justify the denial of leave to amend the complaint. Morse v.        leave to amend on grounds that are apparent from the record.
McWhorter, 290 F.3d 795, 800 (6th Cir. 2002). Delay,                Morse, 290 F.3d at 801.
however, will become “undue” at some point, “placing an
unwarranted burden on the court,” or “‘prejudicial,’ placing          Defendant clearly argued that it would be unfairly
an unfair burden on the opposing party.” Morse, 290 F.3d at         prejudiced if required to respond to a distinct new claim of
800 (citing Adams v. Gould Inc., 739 F.2d 858, 863 (3d Cir.         infringement with only a few weeks of discovery remaining.
1984)).                                                             Plaintiffs focus on the magistrate judge’s mistaken reliance on
                                                                    the April 1 deadline for seeking leave to amend. Nonetheless,
  Had the district court made an explicit finding of prejudice,     as defendant argues, plaintiffs’ motion was not timely because
very little would need to be said in affirming the denial of        the district court required that any amendments be sought in
leave in this case. The district court’s order, although brief,     sufficient time that discovery could be completed before May
touched on undue delay and prejudice, explaining:                   21. Also, the record reflects that although there were
                                                                    extensions of discovery beyond that date, extensions were
     The plaintiffs object to the Magistrate Judge’s                only granted to allow the completion of certain depositions
  conclusion that plaintiffs had not offered a sufficient           and did not affect the deadline for filing dispositive motions.
  reason for failing to amend their complaint to add claims         We find no abuse of discretion in the district court’s denial of
  and parties by the deadline set by the Court. Plaintiffs          leave to raise new claims based on a different song, by a
  argue that this deadline was modified by subsequent               different artist, in the movie.
  order, and that the Magistrate Judge erred under Sixth
  Circuit law by not allowing the amendments in the                                               IV.
  interests of justice. The defendants respond that [the]
  Magistrate Judge correctly concluded that, under the                Bridgeport, Southfield Music, and Nine Records appeal
  circumstances of this case, amendment on the eve of the           from the decision to award $41,813.30 in attorney fees and
                                                                    costs to No Limit Films as a prevailing party under 17 U.S.C.
Nos. 02-6521; 03-5738               Bridgeport Music et al. v.           25     26    Bridgeport Music et al. v.             Nos. 02-6521; 03-5738
                                       Dimension Films et al.                         Dimension Films et al.

§ 505. Apportioning the award between these plaintiffs, the                     Hensley v. Eckerhart, 461 U.S. 424, 436-37 (1983)).18
district court ordered that Southfield and Nine Records be                      Several nonexclusive factors may be considered as long as
held liable, jointly and severally, for 10% of the total. The                   they are “faithful to the purposes of the Copyright Act and are
district court also found that no award was warranted against                   applied to prevailing plaintiffs and defendants in an
Westbound Records because its claims were objectively                           evenhanded manner.” Id. at 534 n.19. Those nonexclusive
reasonable and based on a developing area of copyright law.                     factors include:       “frivolousness, motivation, objective
As a result, the amount of fees reasonably incurred in defense                  unreasonableness (both in the factual and in the legal
of this action were reduced by 50%. Plaintiffs do not                           components of the case) and the need in particular
challenge the calculation of the fees or the inclusion of any                   circumstances to advance considerations of compensation and
particular item.                                                                deterrence.” Id. (quoting Lieb v. Topstone Indus., Inc., 788
                                                                                F.2d 151, 156 (3d Cir. 1986)).
  A court may, in its discretion, award costs, including
reasonable attorney fees, to the prevailing party in a civil suit                  Southfield and Nine Records, neither of which had an
under the Copyright Act. 17 U.S.C. § 505.17 Our review is                       interest in “Get Off” or “100 Miles,” argue that defendant did
for abuse of discretion. Coles v. Wonder, 283 F.3d 798, 804                     not truly prevail against them because they were
(6th Cir. 2002) (affirming award to prevailing defendant);                      “inadvertently” left in the amended complaint and they did
Murray Hill Publ’ns, Inc. v. ABC Communications, Inc., 264                      not oppose dismissal in this case. They did not voluntarily
F.3d 622, 639 (6th Cir. 2001) (reversing award to prevailing                    dismiss their claims, however, as it was only in response to
defendant). A district court abuses its discretion when it                      defendant’s dispositive motions that they acquiesced in
relies on clearly erroneous factual findings, improperly                        dismissal. Moreover, the inclusion of Southfield and Nine
applies the law, or uses an erroneous legal standard. Adcock-                   Records in the amended complaint in this case was less
Ladd v. Sec’y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000).                   “inadvertent” than a reflection of the plaintiffs’ failure to
                                                                                discriminate between defendants and claims. No Limit Films
  The discretion to award attorney fees under § 505 is to be                    is a prevailing defendant as judgment was entered in its favor
exercised in an evenhanded manner with respect to prevailing
plaintiffs and prevailing defendants, and in a manner
consistent with the primary purposes of the Copyright Act.
Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994). “‘There is no
                                                                                     18
precise rule or formula for making these determinations,’ but                           Tho se considerations include: the primary objective of the
instead equitable discretion should be exercised ‘in light of                   Copyright Act to “encourage the production of original literary, artistic,
the considerations we have identified.’” Id. at 534 (quoting                    and musical expression for the good of the public”; the fact that
                                                                                defendants as well as p laintiffs may ho ld copyrights and run the “gamut”
                                                                                from large corporations to “starving artists”; the need to encourage
                                                                                “defen dants who seek to advance a variety of meritorious copyright
    17
                                                                                defenses . . . to litigate them to the same extent that p laintiffs are
        Section 505 provides that: “In any civil action under this title, the   encouraged to litigate meritorious claims of infringement”; and the fact
court in its discretion may allow the recovery of full costs by or against      that “a successful defense of a copyright infringement action may further
any party other than the United States or an officer thereof. Except as         the policies of the Copyright Act every bit as much as a successful
otherwise provided by this title, the court may also aw ard a reaso nable       prosecution of an infringement claim by the holder of a copyright.” Id.
attorne y’s fee to the prevailing pa rty as part of the co sts.”                at 524 and 527.
Nos. 02-6521; 03-5738              Bridgeport Music et al. v.          27     28   Bridgeport Music et al. v.     Nos. 02-6521; 03-5738
                                      Dimension Films et al.                       Dimension Films et al.

on all claims.19 Concluding that Bridgeport’s claim was                        making urban music) were lumped together in broad
objectively unreasonable, the district court indicated that the                categories and descriptions of activities. The individual
factor weighed heavily in favor of awarding fees. The district                 counts described the infringing conduct of the defendants
court, relying on its decision granting summary judgment to                    by references to these broad generalizations, without any
defendant, specifically found Bridgeport’s claims were                         specific information as to what any individual defendant
objectively unreasonable because Bridgeport had no                             did to violate the Copyright Act.
ownership interest in “100 Miles” when the oral
synchronization license was granted and offered no evidence                       From that inauspicious beginning, this action
to undermine the existence of a valid license. Bridgeport                      proceeded in a like manner, with heavy emphasis on
argues that its claim, although unsuccessful, was not                          discovery disputes and motion practice and little
objectively unreasonable because it was not aware No Limit                     attention paid to narrowing the issues and refining the
would claim it had an oral license that preceded the Release                   claims. The plaintiffs repeatedly taxed the patience of
and Agreement. As defendant responds, nothing in this                          the Court, from narrowing the margins on their
record suggests Bridgeport would not have sued No Limit                        memoranda to circumvent page limits, to filing
Films if it had been aware of the oral license.                                voluminous pleadings that were long on argument but
                                                                               short on concrete facts or applicable legal authority. The
  This brings us to what the district court called the deciding                plaintiffs took every opportunity to inundate the Court
factor – the manner in which the plaintiffs litigated this                     with paperwork, yet many of these motions were hastily
action. This consideration, plaintiffs maintain, represents                    prepared and often lacked sufficient legal or factual
nothing more than an attempt to punish Bridgeport and deter                    support. Most notably, the plaintiffs filed a motion for
the plaintiffs from pursuing reasonable, nonfrivolous claims                   summary judgment on ownership yet failed to submit
in other cases under threat of an award of attorney fees. The                  certified copies of the registration certificates for the
district court reasoned as follows:                                            copyrights they claimed to own. When this oversight
                                                                               was pointed out by the Magistrate Judge as being fatal to
  The initial complaint in this action is so voluminous that,                  their summary judgment motion, the plaintiffs, instead of
  with exhibits, it is almost 1,000 pages long and takes                       providing the documentation (which could be easily
  days to read in its entirety. It is replete with diatribes                   obtained from the U.S. Copyright Office), expended
  against the music industry, but lacks concrete facts                         enormous effort in subsequent motion papers trying to
  directed at specific defendants. Almost all of the 800 or                    convince the Court that the certified copies were
  so defendants in the initial complaint (representing what                    unnecessary [until ordered to produce them].
  appeared to be almost the entirety of entities involved in
                                                                                 The plaintiffs’ tactics have contributed to the
                                                                               multiplication of fees by all parties, including the
    19
                                                                               defendant here. This, combined with the determination
        Plaintiffs argue that Southfield had a significant interest in “How    that Bridgeport’s claim was objectively unreasonable,
Ya Do Dat” and joined Bridgeport in seeking leave to file the second           merits an award for fees and costs against Bridgeport.
amended complaint to assert infringement claims. That assertion does not
affect the pre vailing party status of defendant or undermine the finding
that the claims which were asserted were objectively unreasonable.
Nos. 02-6521; 03-5738          Bridgeport Music et al. v.     29    30   Bridgeport Music et al. v.      Nos. 02-6521; 03-5738
                                  Dimension Films et al.                 Dimension Films et al.

   To award fees simply because of the length of and lack of        of the nominal award of fees in this case, as defendant was
specificity in the original complaint or because of the number      required to investigate whether they had any claim and
of claims brought by the plaintiffs would strike us as punitive     affirmatively move for dismissal of their claims before it was
and inconsistent with the purposes of the Copyright Act. See        conceded that they had no interest in the copyrighted works.
Murray Hill, 264 F.3d at 639-40 (reversing award of attorney
fees, despite district court’s criticism of the “voluminous           AFFIRMED in part, REVERSED in part, and
burden” the case imposed, noting only that the law was              REMANDED for further proceedings consistent with this
unsettled and the plaintiff presented one or more colorable         opinion.
claims). The district court’s criticisms go beyond just that,
however, and are tied to conduct that complicated rather than
streamlined the issues and contributed to the multiplication of
fees for the defendant.
   While the district court did not articulate this consideration
in terms of the Fogerty factors, and was not required to since
they are nonexclusive, we see it as related to the recognized
factor of deterrence and compensation. The unique posture of
this case as one of hundreds brought in the same manner and
asserting parallel claims, makes deterrence a particularly
relevant and appropriate consideration. It is not the
deterrence of objectively reasonable good faith claims, but the
interest in motivating plaintiffs to sort through the objectively
unreasonable ones and prosecute this at best cumbersome
litigation in a way that discriminates between parties and
claims.
   Plaintiffs charge that the defendant was equally responsible
for multiplying fees, particularly by failing to designate a
representative for deposition who had knowledge of the facts
concerning the use of “Get Off” in Hook Up. While there is
some suggestion that defendant contributed to increased
discovery costs because multiple depositions were required,
our review is deferential and the record does not demonstrate
clear error in the district court’s assessment of plaintiffs’
litigation conduct. Ultimately, we cannot say the district
court abused its discretion in this case, particularly given the
50% reduction in attorney fees to account for Westbound’s
claims. Nor should Southfield and Nine Records be relieved
