                                                                           FILED
                             NOT FOR PUBLICATION                           MAR 17 2016

                                                                       MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


KTS KARAOKE, INC., a California                  No. 14-55355
corporation; TIMMY SUN TON,
individually,                                    D.C. No. 2:12-cv-00014-MWF-
                                                 JEM
                Plaintiffs-counter-defendants
- Appellants,
                                                 MEMORANDUM*
 v.

SONY ATV MUSIC PUBLISHING, LLC;
SONY/ATV DISCOS MUSIC
PUBLISHING, LLC; SONY/ATV LATIN
MUSIC PUBLISHING, LLC; SONY/ATV
SONGS LLC; SONY/ATV SOUNDS
LLC; SONY/ATV TUNES LLC,

                Defendants-counter-plaintiffs
- Appellees.


                    Appeal from the United States District Court
                        for the Central District of California
                   Michael W. Fitzgerald, District Judge, Presiding

                              Submitted March 7, 2016**
                                 Pasadena, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: W. FLETCHER, MURGUIA, and OWENS, Circuit Judges.

      KTS Karaoke, Inc. (“KTS”) appeals the district court’s denial of its motion

for attorney’s fees under the Copyright Act. Reviewing for abuse of discretion,

Cadkin v. Loose, 569 F.3d 1142, 1146 (9th Cir. 2009), we affirm.

      KTS was not the prevailing party as to Sony’s counterclaim for copyright

infringement, the voluntary dismissal of which forms the basis for KTS’s request

for attorney’s fees. See 17 U.S.C. § 505 (providing that “the court may also award

a reasonable attorney’s fee to the prevailing party as part of the costs”). Sony

agreed to voluntarily dismiss its counterclaim against KTS as part of a settlement

agreement in which KTS’s insurer, Travelers, agreed to pay Sony $1.25 million.

Sony was the prevailing party in the deal because it obtained “an enforceable,

judicially sanctioned award of much of the relief [it] sought,” here, money

damages. Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589

F.3d 1027, 1031 (9th Cir. 2009).

      The fact that the district court ordered that Sony’s Tennessee suit be

consolidated with the California suit, and that the court denied Sony’s motions for

sanctions, for a preliminary injunction, and to dismiss KTS’s claims does not

render KTS the prevailing party, as those orders did not afford KTS any actual

relief. See id. at 1031 (“[T]he court must formally indicate that the plaintiff is


                                           2
entitled to some actual relief—legal or equitable relief—in order to establish a

material alteration.” (emphasis in original)). A favorable determination on a legal

issue is not enough. Citizens for Better Forestry v. U.S. Dep’t of Agric., 567 F.3d

1128, 1133 (9th Cir. 2009). Moreover, Sony was never forced by the court to

reduce the number of allegedly infringing works. See Klamath, 589 F.3d at 1031

(“To receive what one sought is not enough to prevail: the court must require one’s

opponent to give it.”). Finally, we reject KTS’s argument that it did not settle with

Sony or that it was not a party to the settlement agreement. By tendering the

counterclaim to Travelers for it to defend, KTS was bound by Travelers’s right to

control the defense. See Safeco Ins. Co. v. Superior Court, 84 Cal. Rptr. 2d 43, 45

(Ct. App. 1999) (“When the insurer provides a defense to its insured, the insured

has no right to interfere with the insurer’s control of the defense.”).

AFFIRMED.




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