           Case: 11-14175   Date Filed: 10/12/2012   Page: 1 of 4

                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 11-14175
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:10-cv-21418-KMM



RAFAEL VERGARA HERMOSILLA,

                                                          Plaintiff - Appellant,

                                  versus

THE COCA-COLA COMPANY,
a Delaware corporation,

                                                         Defendant - Appellee.

                      ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (October 12, 2012)

Before CARNES, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
              Case: 11-14175      Date Filed: 10/12/2012   Page: 2 of 4

      Rafael Vergara Hermosilla appeals the award of attorney’s fees and costs to

the Coca-Cola Company, which obtained a summary judgment against his

complaint of copyright infringement. The district court awarded Coca-Cola

attorney’s fees and costs because Vergara “should reasonably have known that his

assignment [of his copyright interest] would be determined to be valid prior to

filing the suit” or, alternatively, “as soon [as] it became clear during discovery that

his claim would lose.” Vergara argues that Coca-Cola is not entitled to recover

any of its expenses because his claim of copyright infringement was objectively

reasonable. We affirm.

      Vergara sued Coca-Cola for allegedly infringing a copyright that Vergara

held in a remixed song, the Celebration Mix, which he had adapted into Spanish

for Coca-Cola to use in an advertising campaign. The district court entered

summary judgment in favor of Coca-Cola, and we affirmed on the ground that “the

record establishe[d] without dispute that Vergara assigned [by email] his copyright

interest [in the adaptation] to Universal” Music Latin America, which in turn had

assigned its rights to the adaptation to Coca-Cola. Hermosilla v. The Coca-Cola

Co., No. 11-11317 (11th Cir. Nov. 3, 2011).

      Coca-Cola moved for an award of $1,576,852.48 for attorney’s fees and

$125,285.78 for costs, but the district court awarded Coca-Cola $535,135 for

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attorney’s fees and $43,011.99 for costs. The district court reduced the hourly rate

and number of hours billed by counsel and support personnel. Although the

district court awarded costs “necessary in the case,” such as court costs,

photocopying, and telephone charges, see 28 U.S.C. § 1920, the district court

denied or reduced the charges for litigation support services, travel, and retaining

an expert witness.

      The Copyright Act gives a district court the district power to award “costs

by or against any party” and “a reasonable attorney’s fee to the prevailing party.”

17 U.S.C. § 505. When the district court weighs the factors that the Supreme

Court identified to “guide courts’ discretion” in Fogerty v. Fantasy, Inc., 510 U.S.

517, 534 & n.19, 114 S. Ct. 1023, 1033 & n.19 (1994), “we will not question the

court’s decision to grant or deny fees absent an abuse of that discretion,” MiTek

Holdings, Inc. v. Arce Eng’g Co., 198 F.3d 840, 842 (11th Cir. 1999). “We will

find an abuse of discretion only when a decision is in clear error, the district court

applied an incorrect legal standard or followed improper procedures, or when

neither the district court’s decision nor the record provide sufficient explanation to

enable meaningful appellate review.” Friends of the Everglades v. S. Fla. Water

Mgmt. Dist., 678 F.3d 1199, 1201 (11th Cir. 2012).

      The district court did not abuse its discretion when it awarded attorney’s

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fees and costs to Coca-Cola. The district court ruled that Vergara’s litigation was

“objectively unreasonable” because Florida law, which Vergara acknowledged as

governing the interpretation of copyright contracts, provided that an email

satisfied the statute of frauds. The district court was entitled to conclude that

Vergara’s complaint, or at least his decision to continue litigating his complaint,

was factually and legally unreasonable. The purposes of the copyright law are

served only when parties “litigate meritorious claims of infringement.” Fogerty,

510 U.S. at 527, 114 S. Ct. at 1030; see MiTek, 198 F.3d at 842.

      We AFFIRM the award of attorney’s fees and costs to the Coca-Cola

Company.




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