                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                  June 22, 2004
                     _______________________
                                                        Charles R. Fulbruge III
                           No. 03-50549                         Clerk
                     _______________________

               WOMACK+HAMPTON ARCHITECTS, L.L.C.,

                       Plaintiff-Appellant

                               v.

  METRIC HOLDINGS LIMITED PARTNERSHIP; CHILES ARCHITECTS, INC.;
 TRAMMEL CROW RESIDENTIAL COMPANY; CHRIS WHEELER; TCR OPERATING
COMPANY, INC.; TCR METRIC, LP; SOUTH CENTRAL RS, INC.; TCR SOUTH
 CENTRAL, INC.; TCR SOUTH CENTRAL 1995, INC.; TCR SOUTH CENTRAL
 DIVISION LP; TCR METRIC CONSTRUCTION LIMITED PARTNERSHIP; GARY
   CHILES; ROBERT BUZBEE; LEWIS BUNCH; KENNETH J. VALACH; PERRY
                  WILSON; J. RONALD TERWILLIGER,

                      Defendants-Appellees

_________________________________________________________________



               WOMACK+HAMPTON ARCHITECTS, L.L.C.,

                       Plaintiff-Appellant

                               v.

   TRAMMEL CROW RESIDENTIAL; TCR LOS RIOS LIMITED PARTNERSHIP
  COMPANY; TCR SOUTH CENTRAL 1995, INC.; SDT ARCHITECTS, INC.;
LEWIS BUNCH; KENNETH J VALACH; THOMAS STOVALL; JOHN ZELEDON; TIM
              HOGAN; JERRY DANIELS; PERRY K WILSON,

                      Defendants-Appellees

_________________________________________________________________

                 CONS. W/ CASE NO. No. 03-50859

               WOMACK+HAMPTON ARCHITECTS, L.L.C.,

                       Plaintiff-Appellee

                               v.

                                1
  METRIC HOLDINGS LIMITED PARTNERSHIP; CHILES ARCHITECTS, INC.;
 TRAMMEL CROW RESIDENTIAL COMPANY; CHRIS WHEELER; TCR OPERATING
COMPANY, INC.; TCR METRIC, LP; SOUTH CENTRAL RS, INC.; TCR SOUTH
 CENTRAL, INC.; TCR SOUTH CENTRAL 1995, INC.; TCR SOUTH CENTRAL
 DIVISION LP; TCR METRIC CONSTRUCTION LIMITED PARTNERSHIP; GARY
   CHILES; ROBERT BUZBEE; LEWIS BUNCH; KENNETH J. VALACH; PERRY
                  WILSON; J. RONALD TERWILLIGER,

                       Defendants-Appellants

_________________________________________________________________

               WOMACK + HAMPTON ARCHITECTS, L.L.C.,
                        Plaintiff-Appellee

                                v.

   TRAMMEL CROW RESIDENTIAL; TCR LOS RIOS LIMITED PARTNERSHIP
  COMPANY; TCR SOUTH CENTRAL 1995, INC.; LEWIS BUNCH; KENNETH J
 VALACH; JOHN ZELEDON; TIM HOGAN; JERRY DANIELS; PERRY K WILSON,

                       Defendants-Appellants

                       --------------------
          Appeals from the United States District Court
                for the Western District of Texas
                          A-01-CV-591-JN
                          A-02-CV-793-JN
                       --------------------

Before DAVIS, BENAVIDES and PRADO, Circuit Judges.

PER CURIAM:*

     Appellant Womack+Hampton Architects, L.L.C. (“WHA”) appeals

from the district court’s grant of summary judgment against it on

its copyright infringement claims.   Two of the defendants below

cross-appeal from the district court’s refusal to grant them

attorney’s fees.   We affirm both decisions.


     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

                                 2
Background Facts and Procedural History

     From 1996 to 1998, WHA designed five different apartment

projects for Appellee/Cross-Appellant Trammell Crow Residential

(“TCR”).1   For each project, WHA and TCR signed Owner/Architect

Agreements (“Agreements”) that provided the terms under which WHA

would work.   Two paragraphs of these agreements are at the center

of the parties’ dispute:

     IX. OWNERSHIP AND RE-USE OF DOCUMENTS
     A.    The Drawings, Specifications, and other documents
     prepared by the Architect for this project are the
     instruments of the Architect’s service for use solely
     with respect to this project and the Architect shall be
     deemed the author of these documents and shall retain all
     common law, statutory, and other reserved right [sic],
     including copyright.
     . . .
     B.    The Owner agrees not to use, copy or cause to have
     copied, the drawings and specifications prepared for this
     project on subsequent phases or other sites without
     proper compensation to the Architect, which shall be
     based upon a mutually agreed upon of [sic] $150.00 per
     unit (base architectural fee), plus engineering services,
     plus contingent hourly charges and expenses for plan
     modifications necessary to adapt these plans and
     specifications to other sites.

Each agreement contained identical provisions, except that the

stated base architectural fee for one of the projects was $250.

     After all five projects were completed, TCR hired two

different architecture firms, Chiles Architects, Inc. and SDT

Architects, to design two projects – one in Austin (called The

North Bend) and one in Plano, Texas (called Los Rios).   In


     1
      WHA sued several related Trammell Crow entities.   We will
refer to all the entities collectively as TCR.

                                 3
designing The North Bend, Chiles used some of WHA’s schematics.

Similarly, in designing Los Rios, SDT used WHA’s schematics from

an earlier project.

         On September 30, 1998, after discovering TCR’s actions, WHA

sent TCR a letter demanding that TCR pay the reuse fee set forth

in the Agreement.     The letter began:

     As you know, Chiles Architects, Inc. has prepared,
     without our knowledge, Construction Documents for
     Trammell Crow Residential utilizing plans which are
     copyrighted property of Womack+Hampton Architects. In
     the past, on another development in Austin, an agreement
     was reached between Womack+Hampton Architects, Trammell
     Crow Residential and Chiles Architects allowing him to
     utilize our designs on that development for a Use Fee
     which is common in this industry. Unfortunately, no such
     agreement was requested nor exists for the use of our
     Windfern designs.

     In an effort to rectify what is an improper use of our
     work product, we have contacted Mr. Chiles to reach a
     settlement agreement. We would like your cooperation and
     agreement to this offer of settlement . . .

     (4)   Our   original   agreement   with   Trammell  Crow
     Residential, Houston, for Windfern calls for a $150.00
     per unit Re-Use fee for future use of our plans. Because
     of our long relationship with your company, and the fact
     that the plans were redrafted by Mr. Chiles, we are
     willing to accept one half of that amount, i.e. $75.00
     per unit for a total Use Fee of $27,450.00. Any future
     reuse of this product will be priced per the original
     written agreement.2

     TCR replied by asking WHA to waive the base architectural

fee of $150 per unit.     TCR never paid any fee and contends that

because it did not hear back from WHA, it understood that WHA had


     2
      No party objected to using this settlement offer as
evidence. In fact, all the parties cite it as evidence.

                                   4
agreed to waive the fee.

     WHA originally sued TCR and Chiles and Chiles’s principal3

for copyright infringement in the Western District of Texas.    WHA

filed an additional suit against TCR, SDT, and SDT’s principals,4

based on essentially the same issues, in the Southern District of

Texas.   The second case was transferred to the Western District

and then consolidated with the original Western District case.

Neither suit contained a claim for breach of contract, and WHA

has repeatedly stated that it did not bring a contract claim.

     TCR filed two motions for summary judgment.   In the first

motion, TCR argued that WHA’s damages were limited to the reuse

fee contained in the Owner/Architect Agreements.   The district

court referred this motion to the magistrate judge, who

recommended granting it.   After the cases were consolidated, the

magistrate issued an amended report and recommendation which

expanded the same conclusion to the claims related to SDT’s use.

WHA filed objections, but the district court accepted the

magistrate’s recommendation.

     Shortly after the district court’s summary judgment order,

TCR, Chiles, and SDT filed additional motions for summary

judgment seeking dismissal of all of WHA’s claims.   These motions


     3
      We will collectively refer to the company and its principal
as “Chiles.”
     4
      We will collectively refer to the company and its principal
as “SDT.”

                                 5
contended that the contract permitted the reuse and that TCR’s

failure to pay the reuse fee was only a breach of contract, not

copyright infringement.   The magistrate recommended granting this

motion.   The district court accepted the magistrate’s

recommendation over WHA’s objections and granted summary judgment

on all of WHA’s claims.   WHA timely filed a notice of appeal.

TCR and Chiles also moved for attorney’s fees.   The district

court denied these motions.   TCR and Chiles cross-appeal from the

denial.

     We review the district court’s grant of summary judgment de

novo.   Hanks v. Transcon. Gas Pipe Line Corp., 953 F.2d 996, 997

(5th Cir. 1992).   The district court’s decision concerning

attorney’s fees is reviewed for an abuse of discretion.   Bridgmon

v. Array Sys. Corp., 325 F.3d 572, 577-78 (5th Cir. 2003).

Interpreting the Agreements

     The parties agree that the reuse provision provides a

copyright license.   They disagree, however, about the scope and

meaning of that license, as well as when it arose.   Generally,

licensing agreements, like other contracts, are interpreted under

state law.   Fantastic Fakes, Inc. v. Pickwick Int’l, Inc., 661

F.2d 479, 483 (5th Cir. Unit B 1981) (applying Georgia law to a

license agreement and noting that “application of Georgia rules

to determine parties’ contractual intent is not preempted by

either copyright act nor does their application violate federal



                                 6
copyright policy”); see also Kennedy v. Nat’l Juvenile Detention

Ass’n, 187 F.3d 690, 694 (7th Cir. 1999) (“[n]ormal rules of

contract construction are generally applied in construing

copyright agreements”).

     When interpreting unambiguous contracts,5 Texas courts “give

terms their plain, ordinary, and generally accepted meaning

unless the instrument shows that the parties used them in a

technical or different sense,” in order to “enforce the

unambiguous document as written.”      Heritage Res., Inc. v.

NationsBank, 939 S.W.2d 118, 121 (Tex. 1996).     The goal of

interpretation is to give effect to the parties’ intentions as

expressed in the contract.    Sun Oil Co. (Del.) v. Madeley, 626

S.W.2d 726, 727-28 (Tex. 1981).    Thus,“[i]n the ordinary case,

the writing alone will be deemed to express the intention of the

parties.”   Id. at 728.   “Only where a contract is first found to

be ambiguous may the courts consider the parties’

interpretation.”   Id. at 732.    Texas courts read the contract as

a whole and give each part of the contract meaning.      Forbau v.

Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994).

Interpretation of unambiguous contracts is a question of law.

     5
      All parties agree that the Agreements are unambiguous.
Under Texas law, if a contract “is so worded that it can be given
a certain or definite legal meaning, it is not ambiguous.” Sun
Oil Co. (Del.) v. Madeley, 626 S.W.2d 726, 732 (Tex. 1981).
Parties’ disagreement about how to interpret a contract does not
make it ambiguous. Forbau v. Aetna Life Ins. Co., 876 S.W.2d
132, 134 (Tex. 1994)(“not every difference in the interpretation
of a contract or an insurance policy amounts to an ambiguity”).

                                   7
DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex.

1999).

Does the reuse provision permit TCR to hire architects other than

WHA?

       Under WHA’s interpretation, the reuse provision requires TCR

to hire WHA on any subsequent project for which TCR wanted to

reuse the plans.    WHA bases this reading on the reuse section’s

inclusion of engineering fees, hourly charges, and expenses along

with the $150 (or $250) reuse fee.     Specifically, this language

provides that, upon reuse, TCR must pay:

       proper compensation to the Architect,6 which shall be
       based upon a mutually agreed upon of [sic] $150.00 per
       unit (base architectural fee), plus engineering services,
       plus contingent hourly charges and expenses for plan
       modifications necessary to adapt these plans and
       specifications to other sites.

       According to WHA, reading the Agreements to permit anyone

other than WHA to reuse and modify the plans would render

meaningless the contract provision about paying for engineering

services, hourly charges, and expenses.     WHA concludes that

because of this, the entire provision can only apply to WHA.

       In contrast, Appellees argue that this clause means that

they had the right to reuse WHA’s designs; in return, they only

had to pay the base reuse fee.    Appellees argue that the reuse

clause would be meaningless (and pointless) if it limited the



       6
        The Agreements identify WHA as “the Architect.”

                                  8
reuse to WHA; WHA already had the right to reuse.      According to

Appellees, such an interpretation runs afoul of the Texas

contract rule that all terms of a contract should be given

effect, the same rule that WHA cites when discussing the

engineering fees and other costs.

     At issue, then, is the scope of the reuse provision and the

meaning of the right to use.     WHA analogizes to, and the district

court distinguished, a Ninth Circuit case interpreting the extent

of a right to use, S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081

(9th Cir. 1989).    In that case, S.O.S., which provided computer

hardware and software for payroll companies, entered into a

license with Payday, a payroll services company.       Id.   Under this

agreement, Payday would use S.O.S. software on Payday’s

independent accountant’s computer, rather than installing a

computer in its office.    Id.   The agreement provided that Payday

“is acquiring the right of use, SOS retains all rights of

ownership.”   Id.   Payday later hired former S.O.S. employees to

create programs derived from S.O.S.’s program and install those

programs on Payday’s computer.    S.O.S sued for copyright

infringement, among other things.      Id. at 1084.   The Ninth

Circuit concluded that the license’s right of use did not cover

S.O.S.’s conduct:

     In the context of the parties’ entire agreement, it is
     clear that the ‘right of use’ was not intended to refer
     to copyright use. The contract does not refer explicitly
     to copyright or to any of the copyright owner’s exclusive
     rights. Payday clearly was concerned solely with

                                   9
     obtaining output in the form       of   processing   payroll
     information for its customers.

Id. at 1088.   The court emphasized that this determination was

based on the facts and noted that “[w]ere this a license between

S.O.S. and another software writer, ‘right of use’ might be more

properly construed to include uses, such as modification of the

software, otherwise reserved to the copyright holder.”       Id. at

1088 n.8; see also Kennedy, 187 F.3d at 695 (license granting a

client “the right to use, duplicate and disclose, in whole or in

part, such materials in any manner for any purpose whatsoever”

gave client the right to create derivative works from the

copyrighted work).

     Unlike the use in S.O.S., here it is clear that the reuse

provision anticipates copyright use, specifically use of the

copyrighted plans for other projects.    Unlike the contract in

S.O.S., the Agreement refers to copyright, and the parties were

addressing reuse of the plans themselves, not of the information

derived from a copyrighted work.

     Additionally, both sides cite evidence outside the contract

to show the existence of earlier dealings and the parties’

interpretation of the contracts.7    Initially, the parties refer

to the September 30, 1998 letter that WHA sent to TCR.       In

particular, WHA points to the section of the letter referring to

     7
      As noted earlier, Texas law does not permit courts to
consider parties’ interpretations of unambiguous contracts.         Sun
Oil, 626 S.W.2d at 732.

                                10
a past occurrence to support its argument that no other

architects were permitted to use its design:

     In the past, on another development in Austin, an
     agreement was reached between Womack+Hampton Architects,
     Trammell Crow Residential and Chiles Architects allowing
     [Chiles] to utilize our designs on that development for
     a Use    Fee   which   is  common   in   this   industry.
     Unfortunately, no such agreement was requested nor exists
     for the use of our Windfern designs.

     In contrast, however, another part of this letter, cited by

Appellees, suggests that the reuse fee covered exactly this

situation:

     Our original agreement with Trammell Crow Residential,
     Houston, for Windfern calls for a $150.00 per unit Re-Use
     fee for future use of our plans. Because of our long
     relationship with your company, and the fact that the
     plans were redrafted by Mr. Chiles, we are willing to
     accept one half of that amount, i.e. $75.00 per unit for
     a total Use Fee of $27,450.00. Any future reuse of this
     product will be priced per the original written
     agreement.

     Thus, the same letter supports both interpretations of the

agreement.   As additional outside evidence of interpretation, WHA

cites the previous agreement referred to in the letter.   The

record contains only one other agreement.   This agreement is

between TCR and Chiles and relates to a project that TCR had been

working on “for several months” and that Chiles took over, using

WHA’s design concepts.   Thus, this is not necessarily a situation

where the reuse provision would apply; it was not clearly another

site or subsequent phase.   Under the WHA/Chiles agreement, Chiles

could not reproduce the designs on other projects without WHA’s

approval and provided that WHA was to receive credit as the

                                11
“Building Design Architect.”   The agreement did not require

Chiles to pay WHA for using the design concepts on that project,

but it provided that “if Chiles chooses to re-use the plans and

designs prepared for this Project on subsequent projects, Chiles,

or Chiles’s Client, shall pay [WHA] the sum of $75.00 for each

unit to be placed on the site.   The base re-use architectural

design fee shall not be less than $10,000.00 for the use of the

designs.”   The contract indicates that WHA would enter into a

separate agreement with TCR, but no agreement is in the record.

      In sum, the outside evidence is of limited use.   The

previous agreement is distinguishable from the situation here,

and the September 1998 letter supports both interpretations.

Because this evidence does not help us, we end up relying on the

contract language itself.   And like the district court, we

conclude that the language permitted the use.

      Even construed narrowly, the contract language does not

support WHA’s interpretation that TCR was required to use WHA on

any future reuse of the plans.   The Agreements provided that TCR

could reuse the work and also required it to pay WHA a fee to do

so.   TCR’s reuse appears to be consistent with that anticipated

under the contract.

Condition Precedent

      WHA also argues that the district court erred when it

refused to construe payment of the reuse fee as a condition



                                 12
precedent to TCR’s right to reuse.   Texas law disfavors

interpreting a contract provision as a condition precedent, and

“forfeiture by finding a condition precedent is to be avoided

when another reasonable reading of the contract is possible.”

Criswell v. European Crossroads Shopping Ctr., Ltd., 792 S.W.2d

945, 948 (Tex. 1990).   The Texas Supreme Court described the

usual situation in which a court will interpret a provision as a

condition precedent:

     In order to make performance specifically conditional, a
     term such as "if", "provided that", "on condition that",
     or some similar phrase of conditional language must
     normally be included. Landscape Design v. Harold Thomas
     Excavating, 604 S.W.2d 374, 377 (Tex.Civ.App.--Dallas
     1980, writ ref'd n.r.e.). If no such language is used,
     the terms will be construed as a covenant in order to
     prevent a forfeiture. While there is no requirement that
     such phrases be utilized, their absence is probative of
     the parties intention that a promise be made, rather than
     a condition imposed. See Hohenberg Bros. Co. v. George E.
     Gibbons & Co., 537 S.W.2d 1, 3 (Tex. 1976).

Criswell, 792 S.W.2d at 948.

     Similarly, when analyzing copyright licenses, many courts

have refused to interpret payment as a condition precedent.

I.A.E., Inc. v. Shaver, 74 F.3d 768, 778 (7th Cir. 1996); Effects

Assoc., Inc. v. Cohen, 908 F.2d 555, 559 n.7 (9th Cir. 1990)

(“[n]or can we construe payment in full as a condition precedent

to implying a license.”);   Irwin v. Am. Interactive Media, Inc.,

1994 WL 394979 at *4, 1994 U.S. Dist. LEXIS 16223 (C.D. Cal.

April 14, 1994); cf. Graham v. James, 144 F.3d 229, 237 (2d Cir.

1998) (payment of royalties not a condition precedent).    WHA has


                                13
not cited any cases in which payment under a license was found to

be a condition precedent.

     Despite the lack of caselaw involving payment, WHA contends

that because the general conveyance was limited to the individual

projects, the reuse right only arose after TCR paid a fee.     WHA

does not, however, cite specific language in the Agreements that

would indicate that the reuse fee was a condition precedent and

not merely a promise to pay.

     Instead, WHA relies on McRoberts Software, Inc. v. Media

100, Inc., No. IP99-1577-C-M/S, 2001 WL 1224727(S.D. Ind. Aug.

17, 2001).     McRoberts involved a software licensing agreement;

the question was whether the defendant could use the plaintiff’s

software without using a particular kind of hardware, called

Media 100.   2001 WL 1224727 at *10.   In other words, the parties

argued over whether use of Media 100 hardware was a condition of

the license.    The relevant language authorized the defendant to,

among other things, “distribute executable code versions of

[modified] CG Option 2.0 when integrated with DTI’s Media 100

hardware and software . . . and such versions shall be licensed

only for use on such hardware.”     Id. (emphasis omitted).   Reading

this language, the court concluded that without the integration

with the Media 100 hardware, the defendant never obtained a

license to use plaintiff’s software.     Id.

     As WHA concedes, much of the McRoberts decision depends on

the conditional language in the license – in particular, the use

                                  14
of the word “when.”    Thus, McRoberts resembles the other cases

involving conditions precedent.    WHA argues that although its

contract does not contain conditional language, its case is

stronger than the McRoberts plaintiff’s case because the

McRoberts contract was a conveyance, whereas the reuse section

consisted of words of reservation with a conditional exception.

WHA contends that reservations are more narrowly construed than

conveyances.   Despite WHA’s claims, this distinction cannot

override the absence of language in the Agreements suggesting

that payment is a condition precedent.

     In short, WHA has not cited specific language in the

Agreements that would suggest that the fee is a condition

precedent.   Although it argues that dealings outside the contract

indicate the existence of a condition precedent, these dealings

are not persuasive, particularly in light of the cases finding a

payment term merely to be a promise.    The district court, thus,

did not err in refusing to read payment of the reuse fee as a

condition precedent.

Did the reuse license extend to Chiles and SDT?

     Lastly, WHA argues that, even if a reuse license existed,

this license was personal to TCR and non-transferable without

WHA’s consent.   In support, WHA cites a case that holds that non-

exclusive patent licenses are non-transferrable.    In re CFLC,

Inc., 89 F.3d 673, 679 (9th Cir. 1996).    Based on an analogy to



                                  15
patent law, the Ninth Circuit has also indicated that copyright

licenses are not transferrable.     Harris v. Emus Records Corp.,

734 F.2d 1329 (9th Cir. 1984); see also SQL Solutions, Inc. v.

Oracle Corp., No.C-91-1079, 1991 WL 626458,(N.D. Cal. Dec. 18,

1991).   Thus, WHA argues that Chiles’s and SDT’s use gives rise

to a separate infringement claim.

     The magistrate concluded, however, that the reuse provision

specifically anticipated that third parties would be involved in

the reuse.   Specifically, the magistrate pointed to the phrase

“cause to have copied” and noted that reuse on another site would

require third-party involvement.       TCR, too, provides evidence

that to “use . . . the drawings and specifications prepared for

this project on subsequent phases or other sites” would

necessarily require TCR to hire an architect to adapt the plans

to fit the other site.    Use consistent with a license is a

defense to an infringement claim.       Lulirama Ltd., Inc. v. Axcess

Broadcast Svs., Inc., 128 F.3d 872, 879 (5th Cir. 1997).

     Further, TCR’s hiring of Chiles and SDT does not appear to

be a transfer of the rights contained in the license.       Cf. Hogan

Sys., Inc. v. Cybresource, Int’l, 158 F.3d 319, 323 (5th Cir.

1998) (bank’s use of independent contractors to work on licensed

software not a transfer of license to contractor because “all of

the work being done inures to the benefit of [the bank]”).       The

use here is consistent with the license and is not an

impermissible transfer.

                                  16
Cross-Appeal on Attorney’s Fees

     TCR and Chiles appeal the district court’s denial of their

motions for attorney’s fees.   A court may award attorney’s fees

to a prevailing party under the Copyright Act.    17 U.S.C. § 505.

Although routinely awarded, these fees are discretionary.       Hogan,

158 F.3d at 325.   That these fees are routinely awarded, however,

does not mean that they are automatically awarded.     See, e.g.,

Creations Unlimited, Inc. v. McCain, 112 F.3d 814, 817 (5th Cir.

1997) (noting that the Supreme Court “repudiated the ‘British

Rule’ for automatic recovery of attorney’s fees by the prevailing

party” and holding that the district court did not abuse its

discretion in denying fees).   The Supreme Court has listed

several non-exclusive factors that are relevant to the fee

determination: “frivolousness, motivation, objective

unreasonableness (both in the factual and in the legal components

of the case) and the need in particular circumstances to advance

considerations of compensation and deterrence.”    Fogerty v.

Fantasy, Inc., 510 U.S. 517, 535 n.19 (1994) (quoting Lieb v.

Topstone Indus., Inc., 788 F.2d 151, 156 (3d Cir. 1986)).     In

Fogerty, the Supreme Court determined that these fees should be

awarded evenhandedly to both prevailing plaintiffs and

defendants.   Id. at 534.   The district court’s decision

concerning attorney’s fees is reviewed for an abuse of

discretion.   Bridgmon v. Array Sys. Corp., 325 F.3d 572, 577-78



                                  17
(5th Cir. 2003).

     In this case, the district court accepted the magistrate’s

report and recommendation that contained a thorough analysis of

the above factors.   First, the magistrate determined that WHA’s

claim was not frivolous, citing three reasons for this

conclusion.    The magistrate determined that WHA’s claims had some

case law support, specifically S.O.S., Inc. v. Payday, Inc., 886

F.2d 1081 (9th Cir. 1989).   The magistrate also noted that the

sheer number of hours TCR’s lawyers claimed to have spent argued

against frivolousness.8   Finally, in response to TCR and Chiles’

arguments that WHA had requested frivolously large amounts of

damages, the magistrate noted that WHA’s method of calculating

damages was permissible under the Copyright Act.   Based on the

same factors, the magistrate concluded that WHA’s claims were not

legally or factually objectively unreasonable.

     Examining motivation, the magistrate also concluded that

Chiles presented no evidence that the suit was improperly

motivated; Chiles only cited WHA’s three-year delay in bringing

suit.    Although Chiles argued that WHA’s purpose was “to recover

as much money as possible and punish the Crow defendants,” the

magistrate noted that “[a]s even the Chiles Defendants concede,

the desire to recover damages underlies the vast majority of


     8
      The magistrate cited Christian v. Mattel, Inc., 286 F.3d
1118, 1132 n.12 (9th Cir. 2002) for the idea that defending a
frivolous case should not require an excessive amount of fees.

                                 18
lawsuits.”

     Finally, the magistrate concluded that awarding TCR and

Chiles fees would not advance considerations of compensation and

deterrence.    In fact, TCR has essentially conceded that it did

something wrong – it did not pay the required reuse fee.      It is

difficult to see how rewarding a company that breached its

contract to pay an author could advance the Copyright Act’s

purposes.    In light of its analysis of these factors, the

district court did not abuse its discretion in declining fees,

despite the rule that fees are routinely granted in copyright

cases.

     For these reasons, we affirm the decisions of the district

court granting summary judgment on WHA’s copyright infringement

claims and denying TCR and Chiles’s requests for attorney’s fees.

AFFIRMED.




                                 19
