                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit Rule 206
                                     File Name: 08a0123p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


                                                       X
                                 Plaintiff-Appellant, -
 BRIDGEPORT MUSIC, INC.,
                                                        -
                                                        -
                                                        -
                                                           No. 06-5420
 WESTBOUND RECORDS, INC., et al.,
                                                        ,
                                           Plaintiffs, >
                                                        -
                                                        -
                                                        -
          v.

                                                        -
                                         Defendants, -
 WB MUSIC CORP., et al.,
                                                        -
                                                        -
 UNIVERSAL-POLYGRAM INTERNATIONAL                       -
                                                        -
                               Defendant-Appellee. -
 PUBLISHING, INC.,

                                                       N
                         Appeal from the United States District Court
                     for the Middle District of Tennessee at Nashville.
                   No. 01-00706—Todd J. Campbell, Chief District Judge.
                                  Argued: January 29, 2008
                             Decided and Filed: March 25, 2008
                  Before: GUY, GILMAN, and McKEAGUE, Circuit Judges.
                                     _________________
                                          COUNSEL
ARGUED: Richard S. Busch, KING & BALLOW, Nashville, Tennessee, for Appellant. Russell
J. Frackman, MITCHELL, SILBERBERG & KNUPP, Los Angeles, California, for Appellee.
ON BRIEF: Richard S. Busch, KING & BALLOW, Nashville, Tennessee, for Appellant. Russell
J. Frackman, Marc E. Mayer, MITCHELL, SILBERBERG & KNUPP, Los Angeles, California,
Philip M. Kirkpatrick, STEWART, ESTES & DONNELL, Nashville, Tennessee, for Appellee.
                                     _________________
                                         OPINION
                                     _________________
       McKEAGUE, Circuit Judge. Plaintiff-Appellant Bridgeport Music, Inc. (“Bridgeport”)
appeals from the district court’s order awarding attorneys’ fees and costs to Defendant-Appellee
Universal-Polygram International Publishing, Inc. (“UPIP”) as a prevailing party under 17 U.S.C.
§ 505. This court had vacated an earlier award of fees and costs to UPIP and remanded to the


                                               1
No. 06-5420              Bridgeport Music Inc., et al. v. WB Music Corp., et al.                             Page 2


district court for further consideration. Bridgeport Music, Inc. v. Rhyme Syndicate Music, 376 F.3d
615 (6th Cir. 2004). On remand, the district court awarded the same amount of fees and costs to
UPIP. Bridgeport argues that the district court abused its discretion. For the reasons set forth below,
we affirm.
                                                         I1
        This is one of a large number of cases brought by Bridgeport and three sister companies
(collectively referred to as “Bridgeport”) against various defendants in the music-publishing
industry. In the original complaint, Bridgeport alleged nearly 500 counts against approximately 800
defendants for copyright infringement and other state-law claims arising from music sampling. The
amended complaint in this case, filed after the district court severed the original case into 476
separate actions, was based on the allegation that the rap song “99 Problems” sampled the opening
three-note chord from the musical composition “Get Off Your Ass and Jam” (“Get Off”), which was
written and recorded by George Clinton, Jr. and the Funkadelics in the mid-1970s. Bridgeport
asserts that it owns the composition “Get Off.”
        Tracy Marrow (p/k/a Ice-T) co-wrote and performed the song “99 Problems” for release on
the album “Home Invasion.” Priority Records released the album on March 23, 1993. More than
a year later, UPIP obtained an interest in the composition through its predecessor, PolyGram
International Publishing, Inc., by assignment from Marrow. On January 7, 1998, Bridgeport notified
UPIP, Warner/Chappell Music (which was listed on the copyright registration as a claimant to “99
Problems”) and others of its sampling claim and demanded that Bridgeport be granted a 33.33%
ownership interest in the musical composition. UPIP did not respond, but Warner/Chappell Music
denied that any samples were used on the “Home Invasion” album.
        More than three years later, Bridgeport commenced this action against UPIP,
Warner/Chappell Music and other defendants. The district court referred the case to a magistrate
judge. Defendants Warner/Chappell Music and WB Music (the “Warner defendants”) moved for
summary judgment on several grounds. The magistrate judge concluded that summary judgment
should be granted. He determined that the infringement claims against the Warner defendants were
barred both by a release as part of a settlement of prior litigation and by the applicable three-year
statute of limitation. Although the Warner defendants had issued a license for the release of “99
Problems” in 1993, the only acts by the Warner defendants within the limitations period were the
receipt of royalties on the sale of the album. Recognizing that there was no case law on the question,
the magistrate judge concluded that the receipt of income from the sale of infringing products within
the limitations period by a party who does not manufacture, distribute, or sell the infringing product
(but who did provide a license) would not constitute direct or contributory infringement.
       UPIP had also moved for summary judgment, arguing, inter alia, that Bridgeport’s claims
were barred, or alternatively, limited by the statute of limitation. While the motion was pending,
UPIP wrote to Bridgeport:
         We have reviewed your Rule 72 Objections to Judge Brown’s R&R to Judge
         Higgins. Judge Brown’s R & R was thoughtfully analyzed and well-reasoned, and
         we fully anticipate that Judge Higgins will adopt it as the order of the Court. We
         understand you have also indicated you intend to appeal this issue to the Sixth
         Circuit. With that in mind, we propose and request that Bridgeport stipulate to
         judgment in favor of Universal Polygram International Publishing, Inc. (“UPIP”) in
         Case 706 based upon Judge Brown’s R&R. This would preserve the parties’ and the

         1
          Following is a synopsis of the factual and procedural background of this case and related litigation. A more
extensive background can be found at Rhyme Syndicate, 376 F.3d at 618-20, 627.
No. 06-5420              Bridgeport Music Inc., et al. v. WB Music Corp., et al.                            Page 3


        Court’s resources and avoid unnecessary expenditures of time, effort, and expense
        because the cases against both Warner-Chappell and UPIP would proceed
        simultaneously.
Bridgeport did not respond.
        Over Bridgeport’s objections, the district court adopted the magistrate judge’s report and
recommendation and granted summary judgment to the Warner defendants on September 16, 2002.
UPIP then obtained leave to supplement its motion for summary judgment. Bridgeport responded
in opposition on October 4, 2002. The district court granted summary judgment to UPIP on
November 7, 2002, finding that Bridgeport failed to demonstrate direct, contributory, or vicarious
infringement by UPIP within the limitations period.
         In a post-judgment motion, UPIP moved for an award of $297,292.60 in attorneys’ fees and
$16,119.22 in nontaxable costs as a prevailing party under 17 U.S.C. § 505. The district court
determined that Bridgeport had pursued an objectively reasonable legal theory that the receipt of
royalties alone constituted an infringing act; however, the theory became unreasonable once the
district court granted summary judgment on the identical issue to the Warner defendants. Because
Bridgeport pursued its claim even though its legal theory had purportedly become objectively
unreasonable, the district court awarded UPIP $79,340.94 in attorney fees and $3,409.35 in costs,
which represented fees and costs incurred by UPIP after September 16, 2002.
        On appeal, this court vacated the award. The court faulted the district court for its
inconsistency regarding the reasonableness of Bridgeport’s legal theory: “The district court
explicitly found that Bridgeport’s receipt of royalties theory was objectively reasonable. This
objectively reasonable theory did not suddenly become objectively unreasonable (factually and
legally) once it became apparent that the district court would most likely reject it and enter summary
judgment in UPIP’s favor.” Rhyme Syndicate, 376 F.3d at 628. The court concluded that it was an
abuse of discretion to award fees and costs based on an erroneous determination that the theory had
become unreasonable. Id. The court remanded the case for the district court to consider in its
discretion whether an award or partial award was warranted based on a weighing of one or more
relevant factors or because an award would otherwise further the purposes of the Copyright Act.
Id. at 628-29.
         On remand, the magistrate judge recommended that a partial award of attorneys’ fees and
costs continued to be warranted. Bridgeport Music, Inc. v. Universal-Polygram Int’l Publ’g, Inc.,
No. 3:01-0706, R&R at 7 (M.D. Tenn. Oct. 20, 2005) (the “R&R”). He recommended that the
district court award the same amount of fees and costs. Id. Over the parties’ objections, the district
court adopted the report and recommendation.2
        Bridgeport timely appealed.
                                                         II
A.       Attorneys’ Fees and Costs under the Copyright Act
        We review the district court’s decision to award attorneys’ fees and costs to UPIP for abuse
of discretion. Rhyme Syndicate, 376 F.3d at 625-26. There is an abuse of discretion “if the district
court relied on erroneous findings of fact, applied the wrong legal standard, misapplied the correct
legal standard when reaching a conclusion, or made a clear error of judgment.” Nafziger v.

        2
           Because the district court adopted in full the magistrate judge’s report and recommendation, the report is
referred to herein as the district court’s opinion.
No. 06-5420            Bridgeport Music Inc., et al. v. WB Music Corp., et al.                       Page 4


McDermott Int’l, Inc., 467 F.3d 514, 522 (6th Cir. 2006) (brackets and internal quotation marks
omitted), cert. denied, 127 S. Ct. 2886 (2007).
         The Copyright Act provides that in civil suits the district court, in its discretion, may award
costs, including reasonable attorneys’ fees, to the prevailing party. 17 U.S.C. § 505. This discretion
must be 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, 534 (1994). The grant of fees and costs “is the rule rather than the
exception and [they] should be awarded routinely.” Positive Black Talk Inc. v. Cash Money
Records, Inc., 394 F.3d 357, 380 (5th Cir. 2004); see also Thoroughbred Software Int’l, Inc. v. Dice
Corp., 488 F.3d 352, 362 (6th Cir. 2007) (same).
         Rejecting both a “dual standard” under which a prevailing defendant is required to show
frivolousness or bad faith and the “British Rule” of automatic recovery of attorneys’ fees and costs
by the prevailing party, the Fogerty Court explained: “There is no precise rule or formula for making
these determinations, but instead equitable discretion should be exercised in light of the
considerations we have identified.” 510 U.S. at 534 (internal quotation marks and citation omitted).
 The Court approved several nonexclusive factors to weigh when considering a request for fees and
costs, including “frivolousness, motivation, objective unreasonableness (both in the factual and legal
components of the case) and the need in particular circumstances to advance considerations of
compensation and deterrence.” Id. at 534 n.19 (internal quotation marks and citation omitted). The
factors need not all weigh in favor of an award in order to grant fees to a prevailing party and other
factors may be considered. Bridgeport Music, Inc. v. Diamond Time, Ltd., 371 F.3d 883, 894 (6th
Cir. 2004).
B.      Weighing the Factors
        On remand, the district court reiterated that Bridgeport’s royalty-receipt theory was
objectively reasonable: “The novelty of Bridgeport’s theory and the contentiousness of both sides
throughout this litigation continue to weigh against a full award of fees and costs to UPIP . . . .”
R&R at 6 (emphasis in original). Other factors, however, weighed in favor of a partial award of fees
and costs to UPIP:
        [T]he fact remains that, while not objectively unreasonable as a matter of law,
        Bridgeport’s pursuance of its claims against UPIP after September 16, 2002, without
        any new facts to offer which might cast doubt upon the outcome, was patently futile
        and thus factually (if not legally) frivolous, especially in light of the lack of evidence
        noted by the Sixth Circuit. The undersigned concludes that these particular
        circumstances present the need “to advance considerations of compensation and
        deterrence” in favor of UPIP. . . . [T]he undersigned deems Bridgeport’s pressing of
        a futile claim to be one more example of the overly aggressive litigation tactics
        which underscored the Court’s prior, vacated award of fees. Indeed, it seems that in
        forcing the additional, fruitless expenditure of efforts and fees associated with trial
        preparation, Bridgeport’s motive must certainly have been retribution, and/or an
        effort to extract settlement dollars without any basis for doing so.
Id. at 6-7.
       This case presents one of the rare instances in which a district court orders a party to pay
attorneys’ fees and costs in spite of finding that the party advanced an objectively reasonable legal
claim or theory. As this court explained in Rhyme Syndicate, “[I]t generally does not promote the
purposes of the Copyright Act to award attorney fees to a prevailing defendant when the plaintiff
has advanced a reasonable, yet unsuccessful claim.” 376 F.3d at 628 (citing Matthew Bender & Co.
No. 06-5420               Bridgeport Music Inc., et al. v. WB Music Corp., et al.                               Page 5


v. West Publ’g Co., 240 F.3d 116, 122 (2d Cir. 2001); Lotus Dev. Corp. v. Borland Int’l, Inc., 140
F.3d 70, 75 (1st Cir. 1998)). Yet, other than being a prevailing party under the Copyright Act, there
is no single factor that must weigh in favor of an award of fees and costs—i.e., no factor is a
necessary condition. Diamond Time, 371 F.3d at 894 (“The district court in this case correctly
observed that because the Fogerty factors are nonexclusive, not every factor must weigh in favor
of the prevailing party and other factors may be considered as well.”). The court recognized this
when it remanded the case in spite of the district court’s earlier finding that Bridgeport’s theory was
objectively reasonable. Thus, the question boils down to the following: despite the objective
reasonableness of Bridgeport’s royalty-receipt theory, are there other factors that are sufficiently
weighty to justify the award against Bridgeport?
         The district court specifically pointed to Bridgeport’s “pressing of a futile claim” as another
part of the pattern of the company’s “overly aggressive litigation tactics” which the district court had
identified in its earlier opinion. R&R at 7. Other parts of this pattern include: filing a single
complaint over 900 pages long with hundreds of separate claims and defendants; engaging in
discovery abuses; abusing the summary judgment process by submitting massive statements of
disputed facts which included legal conclusions and immaterial and argumentative assertions; and
engaging in sharp pre-trial practices. This court has approved prior awards of fees and costs against
Bridgeport in companion cases for similar reasons. See Bridgeport Music, Inc. v. Dimension Films,
410 F.3d 792, 809 (6th Cir. 2005) (affirming award based on deterrence and compensation);
Diamond Time, 371 F.3d at 896 (affirming award based in part on improper motivation of
Bridgeport and deterrence); cf. Bridgeport Music, Inc. v. Sony Music Entm’t, Inc., 114 F. App’x 645,
651-53 (6th Cir. 2004) (unpublished) (explaining that deterrence is a “particularly relevant factor
to be considered” but that it was an abuse of discretion to base the award solely on Bridgeport’s
voluminous pleadings and conduct of counsel).
       As the district court reiterated on remand, Bridgeport’s theory had some support in law and
in fact—it was objectively reasonable. The district court’s negative evaluation of the theory in the
case against the Warner defendants did not somehow dissolve the theory’s legal and factual merits
with regard to UPIP. That is, in essence, what the court held in Rhyme Syndicate.
        Recognizing that the royalty-receipt theory was, is, and will remain objectively reasonable
regardless of the ultimate outcome, however, does not mean that Bridgeport’s continued reliance
on the theory in this instance was necessarily nonsanctionable. Objective reasonableness is not an
impenetrable shield against fees and costs. As the district court    noted, once it had rejected the
theory under similar factual circumstances in a companion case,3 it was fruitless in a practical sense
for Bridgeport to pursue that same theory before the same judge and thereby force UPIP to incur
expenses preparing for trial. As it has in several companion cases, Bridgeport failed to weed out
those claims and theories for which it “had little hope of recovering” from the claims and theories
that arguably have merit. Dimension Films, 410 F.3d at 809 (“The district court’s criticisms go
beyond just [the length and number of claims], however, and are tied to conduct that complicated
rather than streamlined the issues and contributed to the multiplication of fees for the defendant.”).




         3
          Bridgeport argues on appeal that there were significant factual differences between its case against the Warner
defendants and its case against UPIP. As Bridgeport admits, however, “the district court found that Bridgeport had not
offered any evidence, beyond the receipt of royalties, of infringing acts occurring within the limitations period.”
Bridgeport’s Reply Br. at 14 (emphasis added). Moreover, this court earlier found “a complete absence of proof
connecting UPIP either to the distribution and sale of the album or to the performance of the allegedly infringing work
within the limitations period.” Rhyme Syndicate, 376 F.3d at 622. While Bridgeport’s factual allegations against UPIP
may have differed somewhat from those against the Warner defendants, it has not shown that the evidence it offered in
opposition to summary judgment against both companies differed in any material way.
No. 06-5420                Bridgeport Music Inc., et al. v. WB Music Corp., et al.                                 Page 6


         To be clear, Bridgeport did not act irresponsibly by pursuing the royalty-receipt theory
against UPIP at the outset or on appeal. It was and remains an objectively reasonable theory. Yet,
it made little practical sense for Bridgeport to continue to pursue vigorously its claim before the
district court when it was on notice that the judge was virtually certain to reject its sole theory of
recovery.
       Bridgeport points out that it had the right to pursue its legal remedies to conclusion. Correct
enough, but it could have done so by agreeing to UPIP’s suggestion that the parties stipulate to
dismissal of the claim on the same basis as the one against the Warner defendants. The cases could
then have both been appealed and consolidated for review by this court.
         Viewed in isolation, Bridgeport’s continued pursuit of the claim before the district
court—while futile given the judge’s rejection of the royalty-receipt theory—might not alone have
warranted an award of fees and costs. As this court explained in Rhyme Syndicate, it would be
improper to “sanction a party simply for electing to await decision on a pending motion.” 376 F.3d
at 628. Yet, when viewed as part of the larger landscape of Bridgeport’s litigation strategy, an
award was justified. “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.” Dimension Films, 410 F.3d at 809. The district court’s interest in motivating
Bridgeport to sort through its claims applies with equal force to claims that become futile during the
course of litigation as it does to claims that are objectively unreasonable at the outset. Cf. id. (“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.”); Diamond Time, 371 F.3d at 895
(“While the district court certainly did not mince words, the harsh criticism of the plaintiffs’
litigation strategy was clearly focused on the resulting failure of plaintiffs to weed out stale claims
against defendants like Diamond Time.”).
        Bridgeport contends that the district court is simply doing in deed what this court held it
could not do in word, namely award fees and costs because the theory had become objectively
unreasonable. But as the defendants did in another companion case, Bridgeport Music, Inc. v.
London Music, U.K., Bridgeport “conflate[s] the Fogerty factors with the facts pertinent to an
analysis of each of those factors.” 226 F. App’x 491, 496-97 (6th Cir. 2007) (unpublished). Here,
the same fact—the district court’s rejection of the identical theory in a companion case—was
considered by the district court under more than one factor. Although the district court previously
erred by concluding, based on this fact, that the theory was objectively unreasonable, it did not err
by concluding, based on this same fact, that it was futile for Bridgeport to pursue the factually
similar claim under the same theory before the same judge and thereby force UPIP to incur fees and
costs to prepare for trial. See id. (“There is no law, of course, that prohibits a judge from considering
the same fact under multiple categories.”). Nor did the district court err by concluding that
Bridgeport continued to press the theory as part of its overly aggressive litigation tactics and not in
any hope or expectation of actually surviving summary judgment. Given the litigation history of
Bridgeport in this and the companion cases, it was not an abuse of discretion for the district court
to award fees and costs against the company in the hope of motivating it to litigate in a more
responsible, realistic manner and to deter it from continuing to engage in questionable litigation
tactics.4

         4
           Bridgeport raises two additional arguments. It contends that the district court failed to consider the parties’
relative ability to pay. Yet, as in prior cases, Bridgeport failed to present any reliable evidence to support its argument.
Sony Music, 114 F. App’x at 652-53 (explaining that a district court can consider the parties’ relative abilities to pay
attorneys’ fees and costs, but that Bridgeport had failed to present any evidence on this point beyond its owner’s
conclusory affidavit). Bridgeport also argues that UPIP was required to assert below that Bridgeport was collaterally
estopped by the decision in the companion case. There are at least two problems with this argument. First, Bridgeport
No. 06-5420                Bridgeport Music Inc., et al. v. WB Music Corp., et al.                                  Page 7


C.       The Amount of the Award
         The district court’s decision to award fees and costs is “bolstered” by its significant reduction
of the requested amount. Coles v. Wonder, 283 F.3d 798, 804 (6th Cir. 2002). As it did earlier, the
district court considered only fees and costs incurred after September 16, 2002. The district court
also reduced the rates of counsel and paralegal work, deducted fees for redacted or nonspecific
entries, allocated fees between two cases against UPIP, and reduced the lodestar amount by an
additional 25% to account for top-heavy billing by partners for work that could have been performed
by associates. Rhyme Syndicate, 376 F.3d at 627.
         Bridgeport argues that the district court abused its discretion in awarding fees and costs for
work that did not contribute to UPIP’s success in this matter. The district court’s award
encompassed work by UPIP’s legal team on the supplemental summary judgment brief as well as
trial preparation and other expenses incurred after September 16, 2002.
        Contrary to Bridgeport’s contention, the district court was not limited to awarding fees and
costs only for the specific matter that was successful. Rather, the award must simply be reasonable.
Diamond Time, 371 F.3d at 896-97. As the trial date approached, it was reasonable for UPIP to
prepare for trial even though the district court had not yet issued its ruling on summary judgment.
By continuing to rely on the royalty-receipt theory after the judge had rejected it in a companion
case, Bridgeport had to bear the risk that the district court would hold it responsible for the cost of
UPIP’s trial preparation. As the expenses were related to UPIP’s litigation defense and were limited
in scope and time, the district court did not abuse its discretion by including in its award expenses
beyond those associated only with the supplemental summary-judgment brief.
                                                            III
        For the reasons set forth above, we find no abuse of discretion in the district court’s award
of attorneys’ fees and costs. Accordingly, we AFFIRM.




raised it for the first time in its reply brief and therefore has waived the argument. Renkel v. United States, 456 F.3d 640,
642 n.1 (6th Cir. 2006). Second, the district court did not find that Bridgeport was legally estopped from pursuing its
royalty-receipt theory against UPIP, only that it was futile to do so as a matter of litigation strategy and common sense.
