      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206             2       Fogerty, et al. v. MGM                Nos. 03-5498/5874
   ELECTRONIC CITATION: 2004 FED App. 0256P (6th Cir.)            Group Holdings Corp., et al.
               File Name: 04a0256p.06
                                                                  Before: MARTIN and SUTTON, Circuit Judges;
                                                                          HOLSCHUH, District Judge.*
UNITED STATES COURT OF APPEALS
                                                                                _________________
             FOR THE SIXTH CIRCUIT
               _________________                                                     COUNSEL

FRANK P. FOGERTY and             X                        ARGUED:        W. Gary Blackburn, BLACKBURN &
NATHAN CROW,                      -                       McCUNE, Nashville, Tennessee, Adam Siegler, THE
                                                          SIEGLER LAW GROUP, Beverly Hills, California, for
          Plaintiffs-Appellants, -                        Appellants. Timothy L. Warnock, BOWEN, RILEY,
                                  -   Nos. 03-5498/5874
                                  -                       WARNOCK & JACOBSON, Nashville, Tennessee, for
            v.                     >                      Appellees. ON BRIEF: W. Gary Blackburn, BLACKBURN
                                  ,                       & McCUNE, Nashville, Tennessee, Adam Siegler, THE
                                  -
MGM GROUP HOLDINGS                                        SIEGLER LAW GROUP, Beverly Hills, California, for
                                  -                       Appellants. Timothy L. Warnock, Jay S. Bowen, BOWEN,
CORP ., INC., d/b/a MGM           -                       RILEY, WARNOCK & JACOBSON, Nashville, Tennessee,
UNIVERSAL MUSIC GROUP,            -                       for Appellees.
INC., UNIVERSAL STUDIOS,          -
INC., and EON PRODUCTIONS, -                                                    _________________
                                  -
LTD .,                            -                                                 OPINION
         Defendants-Appellees. -                                                _________________
                                  -
                                  -                         SUTTON, Circuit Judge. Plaintiffs Frank P. Fogerty and
                                  -                       Nathan Crow appeal the district court’s order granting
                                 N                        summary judgment and awarding attorneys’ fees to
       Appeal from the United States District Court       defendants (collectively, “MGM”) in this copyright
    for the Middle District of Tennessee at Nashville.    infringement case. As we agree with the district court that
  No. 01-00158—William J. Haynes, Jr., District Judge.    plaintiffs have not presented a sustainable theory of relief, we
                                                          affirm that ruling. As we disagree with the district court’s
                 Argued: June 9, 2004                     award of attorneys’ fees, we reverse that ruling.

         Decided and Filed: August 3, 2004


                                                              *
                                                               The Honorable John D. Holschuh, United States District Judge for
                                                          the Southern District of Ohio, sitting by designation.

                           1
Nos. 03-5498/5874             Fogerty, et al. v. MGM        3    4    Fogerty, et al. v. MGM              Nos. 03-5498/5874
                          Group Holdings Corp., et al.                Group Holdings Corp., et al.

                              I.                                 for Geoff Foster and Isabel Griffiths, employees of Air
                                                                 Studios, on a grand piano in the studio’s main hall.
  Michael Wilson and Barbara Broccoli, the current
producers of the James Bond films and principals of Eon            In early January 1999, Arnold completed the song and
Productions, Ltd., sought a composer to write the musical        created a “demo” recording of it on his computer at his
score for the nineteenth Bond film—“The World Is Not             private recording studio.    Arnold’s computer shows
Enough.” In September 1998, Wilson and Broccoli selected         January 6, 1999 as the last day he modified the demo
David Arnold, a London-based composer, a Grammy award            recording.
winner for the musical score for “Independence Day,” and the
author of the end theme song for the Bond film “Tomorrow           At roughly this time, Arnold played “The World Is Not
Never Dies.” Arnold maintains a private recording studio in      Enough” for Michael Wilson and Barbara Broccoli, the
London, where he composed the theme song and gave it the         producers of the upcoming film. They liked the song. On
same name as the film. In writing the song, Arnold               January 8, 1999, Arnold traveled to Pinewood Studios in
collaborated with lyricist Don Black, who also lives in          England and played the song for Michael Apted, the director
London and who has written the lyrics to the theme songs for     of “The World Is Not Enough,” who “was extremely pleased
four previous Bond films. Arnold and Black met several           with [the song].” JA 233.
times in November and December of 1998 to discuss the
lyrics for “The World Is Not Enough,” and they exchanged            Arnold next asked Trish Hillis to deliver a copy of the
phone calls, faxes and e-mails during that time in               demo to Shirley Manson, who (as noted) had agreed to record
collaborating on the song.                                       the song. On January 19, Hillis’s phone log shows that she
                                                                 contacted Ian Wesley, the general manager of Mushroom
  Arnold also contacted Shirley Manson, the Scottish-born        Records, Garbage’s record label. Wesley told Hillis that
lead singer for the rock-group “Garbage,” and asked her to       Manson was staying at the Royal Garden Hotel in London
record the song. She agreed.                                     and to deliver the recording to the hotel at 10 a.m. the next
                                                                 day. On January 20, after Hillis arrived at the Royal Garden
  Between late October and November of 1998, Arnold              Hotel, she called Harold Kohl, Garbage’s tour manager, who
played the melody of “The World Is Not Enough” over the          told her to leave the recording at the front desk. A bill from
phone to his personal assistant Trish Hillis, before whom he     the Royal Garden Hotel indicates that Shirley Manson stayed
often informally auditioned his songs. According to Arnold,      there on January 20, 1999, and Manson later recalled
he “strung some la-la’s together, and all of a sudden the        receiving the song from Kohl in January 1999 while staying
[song] came to life, and [he] thought [that was] probably it.”   at the hotel.
JA 229. On December 26, 1998, Arnold again played “The
World Is Not Enough” for Hillis, this time on a piano at his        Arnold next sent a recording of the song to his American
London home. When Arnold played the music for Hillis, he         agent, Vas Vangelos, who lives in Los Angeles. An invoice
had completed the song and lyrics, save for the bridge—a         shows that Air Studios billed Eon Productions for a shipment
brief transition of approximately eight bars in the middle of    to Vangelos on February 2, 1999. Michael Sandoval, then an
the song. In December 1998, Arnold also played the melody        executive vice president at MGM, requested a copy of “The
                                                                 World Is Not Enough” from Vangelos. Sandoval received
Nos. 03-5498/5874             Fogerty, et al. v. MGM         5    6      Fogerty, et al. v. MGM              Nos. 03-5498/5874
                          Group Holdings Corp., et al.                   Group Holdings Corp., et al.

“The World Is Not Enough” on February 4, 1999, and he             Middle District of Tennessee. The parties conducted
played the song for other MGM executives. No one                  discovery, and MGM moved for summary judgment,
apparently liked the song initially because it was a ballad and   claiming that the undisputed facts showed that Arnold
because they had hoped for a theme song with a different          independently created “The World Is Not Enough.”
tempo.
                                                                    The district court granted MGM’s motion, concluding that
  On the same day (February 4, 1999), Nathan Crow visited         Arnold had independently written the tune to the song:
Michael Sandoval at MGM and delivered a recording of his
song “This Game We Play,” which he had co-written with                Defendants and composers of [“The World Is Not
Frank P. Fogerty. According to Crow, Sandoval liked the               Enough”] did not have access to [“This Game We Play”]
song, suggested that he might consider it for the 1999 film           [through] any of the avenues postulated by Plaintiffs
“The Thomas Crown Affair” and kept a copy of the                      because a review of the record indicates that the melody
recording. Arnold’s “The World Is Not Enough,” it turns out,          and significant portions of [“The World Is Not Enough”]
shares an identical four-note sequence with Crow’s “This              . . . were completed prior to the dates that any alleged
Game We Play.”                                                        access by Defendants to [“This Game We Play”] could
                                                                      have occurred.
   Before Manson recorded the commercial version of “The
World Is Not Enough,” MGM contacted Arnold in March of            D. Ct. Op. at 17 (Mar. 14, 2003). The district court also
1999 and suggested that a “three-note motif” in “The World        rejected plaintiffs’ alternative claim that the two songs are
Is Not Enough” was too similar to a motif in earlier Bond         “strikingly similar,” an independent theory of liability that
theme songs. Arnold agreed to remove the three-note               warrants relief even when the plaintiff cannot prove access.
sequence, which all agree is unrelated to the four-note           Id. at 19–20. “There is no evidence adduced by Plaintiffs,”
sequence that “This Game We Play” and “The World Is Not           the court concluded, “to support the proposition that the two
Enough” have in common.                                           works are so strikingly similar that copying is the only
                                                                  plausible explanation of the similarities.” Id. at 20.
  In June and August of 1999, Shirley Manson and her band
recorded “The World Is Not Enough.” Manson requested one            In the aftermath of this ruling, MGM moved for attorneys’
lyrical change in the song because the line—“I know when to       fees under § 505 of the Copyright Act, 17 U.S.C. § 505, and
kiss and I know when to kill”—did not meet her tastes. JA         for nontaxable costs under Federal Rule of Civil Procedure
228. Arnold and Black changed the lyrics, and she completed       54(d). Alleging that plaintiffs’ claims were “objectively
the recording.                                                    unreasonable,” MGM sought $170,519 in attorneys’ fees and
                                                                  $11,647.60 in non-taxable costs. The district court granted
                              II.                                 MGM’s motion for attorneys’ fees “in the interests of justice
                                                                  and in furtherance of the objectives of the Copyright Act.” D.
  Convinced that Arnold and MGM had copied the four-note          Ct. Op. at 8 (June 17, 2003). “Plaintiffs[’] claims were
sequence from “This Game We Play” in composing “The               objectively unreasonable,” the district court observed, “in that
World Is Not Enough,” Fogerty and Crow filed a copyright          Plaintiffs pursued litigation despite multiple third-party
infringement action in the United States District Court for the   declarations establishing independent creation of [“The World
Nos. 03-5498/5874                Fogerty, et al. v. MGM            7    8     Fogerty, et al. v. MGM                 Nos. 03-5498/5874
                             Group Holdings Corp., et al.                     Group Holdings Corp., et al.

Is Not Enough”] before any of the Defendants had access to              claim of copyright infringement requires proof of
Plaintiffs’ original work,” and “Plaintiffs offered no direct           “(1) ownership of a valid copyright, and (2) copying of
evidence to support one of the two basic elements of                    constituent elements of the work that are original.” Feist
copyright infringement.” Id. at 8–9. The district court,                Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361
however, “conclude[d] that a 30% reduction in the billed                (1991); see also Ellis v. Diffie, 177 F.3d 503, 506 (6th Cir.
hours . . . is appropriate . . . in light of the overstaffing of this   1999).
litigation, the redundant billing, and vague entries on the
firm’s invoices,” id. at 15, and awarded MGM $85,507.16 in                Because claimants rarely have direct evidence of copying,
attorneys’ fees, id. at 19. Holding that fees for “(1) legal            they typically try to establish an inference of copying by
research; (2) federal express charges; (3) messenger service;           showing “(1) access to the allegedly-infringed work by the
(4) phone/telecopy; (5) postage; (6) out of town travel; and            defendant(s) and (2) a substantial similarity between the two
(7) copies” were not allowable, the district court denied               works at issue.” Ellis, 177 F.3d at 506. “Access,” we have
MGM’s request for nontaxable costs of $11,647.60. Id. at 20.            held, “is essentially hearing or having a reasonable
For routine taxable costs, the district court awarded                   opportunity to hear the plaintiff[s’] work and thus having the
$4,847.58. Id. at 23.                                                   opportunity to copy” and “may not be inferred through mere
                                                                        speculation or conjecture.” Id. (quotations omitted). The
                                III.                                    “substantial similarity” analysis first requires a filtering of the
                                                                        unprotectable aspects of the protected work, then asks
   Summary judgment is appropriate when “the pleadings,                 whether an “ordinary observer” would perceive the original
depositions, answers to interrogatories, and admissions on              and the alleged copy as substantially similar. See Kohus v.
file, together with the affidavits, if any, show that there is no       Mariol, 328 F.3d 848, 855–57 (6th Cir. 2003). Once a
genuine issue as to any material fact and that the moving               plaintiff establishes access and substantial similarity, the
party is entitled to judgment as a matter of law.” Fed. R. Civ.         defendant may rebut the presumption of copying by showing
P. 56(c). “Where the record taken as a whole could not lead             independent creation of the allegedly infringing work. Ellis,
a rational trier of fact to find for the non-moving party,” the         177 F.3d at 507; see also Susan Wakeen Doll Co. v. Ashton
Supreme Court has held, “there is no genuine issue for trial.”          Drake Galleries, 272 F.3d 441, 450 (7th Cir. 2001). Lastly,
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.             even without proof of access, a plaintiff still may prevail by
574, 587 (1986) (quotation omitted). A district court’s                 showing a “striking similarity [between the works],
summary-judgment decision receives de novo review. See                  precluding all possible conclusion but that the work was
Farhat v. Jopke, 370 F.3d 580, 587 (6th Cir. 2004).                     copied.” Murray Hill Publ’ns, Inc. v. Twentieth Century Fox
                                                                        Film Corp., 361 F.3d 312, 325 (6th Cir. 2004).
   The Copyright Act gives copyright owners exclusive rights
to reproduce, prepare derivative works from, distribute, and              In applying these principles to this case, the parties share
publicly perform or display a copyrighted work. See 17                  considerable common ground. MGM does not dispute that
U.S.C. § 106. To the ends of protecting these rights, the Act           Fogerty and Crow own a valid copyright in “This Game We
allows “[t]he legal or beneficial owner of an exclusive right           Play,” and plaintiffs concede that they failed to produce direct
under a copyright . . . to institute an action for any                  evidence of copying. For purposes of this appeal, the parties
infringement of that particular right.” 17 U.S.C. § 501(b). A           also agree that Fogerty and Crow proved that MGM had
Nos. 03-5498/5874              Fogerty, et al. v. MGM           9    10    Fogerty, et al. v. MGM               Nos. 03-5498/5874
                           Group Holdings Corp., et al.                    Group Holdings Corp., et al.

access to their work after February 4, 1999, and that the two           Aside from a lyrical change to the song (the removal of one
songs are substantially, but not strikingly, similar.                line to accommodate Shirley Manson) and one change to the
                                                                     score (the removal of the “three-note motif” to accommodate
  The question under these circumstances is whether David            the MGM executives), the witnesses that testified or gave
Arnold independently created “The World Is Not Enough”               declarations agree that the song they heard before February 4,
before February 4, 1999, and whether the undisputed                  1999 did not otherwise change after that date. In the face of
evidence establishes that fact. We believe it does.                  this evidence that Arnold and Black independently created
                                                                     “The World Is Not Enough” before MGM first had access to
  Fogerty and Crow concede that David Arnold did not have            “This Game We Play” on February 4, 1999, plaintiffs raise a
access to “This Game We Play” until Crow delivered a                 series of arguments designed to show that they nonetheless
recording of the song to Michael Sandoval at MGM on                  should be able to present their claim to a jury. Each is
February 4, 1999. Before that date, deposition testimony and         unconvincing.
personal calendar entries show that David Arnold and Don
Black collaborated on “The World Is Not Enough” in                      First, they suggest that they can respond to this evidence
November and December 1998. Arnold performed the song                simply by claiming that a jury might choose to disregard it or
twice for his personal assistant Trish Hillis between October        might find it unpersuasive. That is not true. See Cox v. Ky.
and December of 1998. He also performed the song for Geoff           Dep’t of Transp. 53 F.3d 146, 150 (6th Cir. 1995) (“[A]
Foster and Isabel Griffiths of Air Studios in December 1998,         nonmoving party may not avoid a properly supported motion
and the film producers Barbara Broccoli and Michael Wilson           for summary judgment by simply arguing that it relies solely
heard the song in early January 1999. Arnold also made a             or in part upon credibility considerations . . . . [I]nstead, the
demo recording of the song, and his personal computer at Air         nonmoving party must present affirmative evidence to defeat
Studios indicates that he last modified the recording on             a properly supported motion for summary judgment.”); Curl
January 6, 1999. The next day, Arnold delivered a copy of            v. Int’l Bus. Machs. Corp., 517 F.2d 212, 214 (5th Cir. 1975)
the song to Pinewood Studios where the film’s director,              (“[T]he party opposing summary judgment must be able to
Michael Apted, listened to the song.                                 point to some facts which may or will entitle him to
                                                                     judgment, or refute the proof of the moving party in some
   Arnold and Hillis also testified that Hillis delivered a copy     material portion, and . . . the opposing party may not merely
of the recording to the Royal Garden Hotel in London where           recite the incantation, ‘Credibility,’ and have a trial on the
Shirley Manson was staying. Hillis produced her phone log            hope that a jury may disbelieve factually uncontested proof.”)
showing that she made several calls concerning the delivery          (quotation omitted); Eaton v. Nat’l Broad. Co., 972 F. Supp.
on January 19, 1999, and her personal calendar indicated that        1019, 1024 (E.D. Va. 1997) (“[A] copyright plaintiff cannot
she planned to go there on January 20 to deliver Arnold’s            base her opposition to summary judgment entirely on the
song. MGM also produced a hotel receipt indicating that              hope that a fact finder will disbelieve the persons who have
Shirley Manson stayed at the Royal Garden Hotel on January           submitted affidavits on issues of access.”); cf. Matsushita,
20. Hillis testified in her deposition that she left the recording   475 U.S. at 586 (“When the moving party has carried its
at the hotel desk for Harold Kohl, Garbage’s tour manager,           burden under Rule 56(c), its opponent must do more than
and Manson recalled receiving the recording from Kohl at the         simply show that there is some metaphysical doubt as to the
hotel.                                                               material facts.”) (footnote omitted).
Nos. 03-5498/5874              Fogerty, et al. v. MGM          11    12    Fogerty, et al. v. MGM                 Nos. 03-5498/5874
                           Group Holdings Corp., et al.                    Group Holdings Corp., et al.

   Second, in the absence of affirmative evidence rebutting            Fogerty and Crow point to one other alleged discrepancy
MGM’s pre-access chain of events, plaintiffs claim that              between Arnold’s and Black’s testimony that deserves
inconsistencies in MGM’s evidence by themselves create a             mention. Posturing as someone working with James Horner,
genuine issue of material fact. They note, for example, that         the composer of the “Titanic” sound track, Crow contacted
MGM executives disliked “The World Is Not Enough” but                Don Black by phone and asked whether Black would be
liked “This Game We Play” in early February 1999. The                interested in writing the song lyrics for the film “Oceans 11.”
different reactions, plaintiffs urge, show that the two songs        During the tape-recorded conversation, Crow asked Black
were not substantially similar on February 4, 1999, and show         questions about “The World Is Not Enough,” including when
that Arnold must have copied “This Game We Play” after               he received the song to write the lyrics. Black, who later
February 4, 1999 because the songs are substantially similar         explained that he was trying to impress someone whom he
today. Too many competing inferences, however, separate              believed to be a major composer, indicated that he received
this premise from plaintiffs’ proposed conclusion. Fogerty           the song approximately two months before the movie’s
and Crow neglect to mention that MGM executives listened             release date, which was December 1999. As Crow admitted
to each song for different reasons—in Arnold’s case to               (after the phone call), “the entire thing [was] deceptive . . .
determine if the song would work for the new Bond film, in           [and] intentional[],” JA 310, because he was trying “to trick
plaintiffs’ case to see if their song would work for another         them into telling [him] the truth,” JA 311.
film. Because the MGM executives listened to each song in
different musical, artistic and commercial contexts—with one            The Federal Rules of Civil Procedure do not provide for
solicited for the Bond movie and the other unsolicited and at        this form of discovery. And it is not clear whether the Federal
most considered for another film—this theory of infringement         Rules of Evidence would permit the admission of such a
is too speculative to warrant a jury trial on its own.               phone call. But even assuming the admissibility of this
                                                                     evidence and even assuming that Fogerty and Crow would
   Fogerty and Crow next scrutinize Arnold’s and Black’s             unveil this antic to a jury, the statement at issue—that Black
testimony. Arnold’s declaration indicates that he made “an           (the lyricist) purportedly received the music to the song just
initial demonstration recording” of the “The World Is Not            two months before its release—does not establish a
Enough” on January 6, 1999. Black’s declaration, however,            cognizable cause of action. In order to credit this statement,
indicates that he made a recording with Arnold in November           a jury would have to believe that Black wrote the lyrics to
or December 1998. Neither version of events, however,                “The World Is Not Enough” in October 1999—two months
places creation of the demo recording after February 4, 1999.        after Garbage finished commercially recording the song. No
A factfinder could believe Arnold; it could believe Black; or        rational trier of fact could rely on this statement in finding for
it could believe parts of each individual’s testimony. But it        Fogerty and Crow.
could not rationally come to the conclusion that the recording
was made after February 4, 1999, especially in light of                 Plaintiffs next point to several letters written by Trish Hillis
plaintiffs’ inability to refute the delivery of a recording of the   to individuals seeking to collaborate with David Arnold while
song to Manson at the Royal Garden Hotel on January 20,              he composed the musical score for “The World Is Not
1999.                                                                Enough.” The nub of these letters is that Arnold continued
                                                                     working on the musical score for the entire movie after the
                                                                     February 4, 1999 date of access. Absent from the letters,
Nos. 03-5498/5874              Fogerty, et al. v. MGM        13    14   Fogerty, et al. v. MGM               Nos. 03-5498/5874
                           Group Holdings Corp., et al.                 Group Holdings Corp., et al.

however, is any reference to the theme song, which is all that     commercially recording the song until that date, the parties do
is at issue here. The most potent letter, dated April 16, 1999,    not dispute that the first recording session of the song
reads: “[Arnold] has also been commissioned to write both          occurred in June 1999. In other words, to believe plaintiffs’
[the theme and end] songs, which were finished a few weeks         interpretation of Manson’s statement, a jury would have to
ago.” JA 594. At most, however, this statement shows that          conclude that Manson first heard “The World Is Not Enough”
both songs (as opposed to only “The World Is Not Enough”)          two months after she began recording the song. No rational
were not complete until after February 4, 1999, which does         jury would accept that sequence of events.
not create a fact dispute that the theme song had not been
completed before that date.                                           Fogerty and Crow next take aim at the declarations of
                                                                   Wilson and Broccoli. In their declarations, Wilson and
   Shirley Manson’s testimony also contains several                Broccoli noted that “[a]side from some minor lyrical changes,
inconsistencies, none of which casts doubt on MGM’s claim          the song David played us in his attic room that day was the
of independent creation. Manson and Arnold failed to recall        same song we ultimately recorded for the film,” but failed to
consistently the details of when Manson first heard the song       mention that Arnold later removed the “three-note motif” that
and when she and Arnold first communicated after she heard         the initial recording of the music shared with earlier Bond
the song. In his declaration, Arnold claimed that he spoke         songs. This oversight, according to plaintiffs, makes the
with Manson on the phone January 20, 1999 (the day Hillis          declarations unreliable. We are not persuaded. The change
delivered the song to the Royal Garden Hotel) and that she         was a minor one; it had nothing to do with the four-note
loved the song. In Arnold’s deposition, he said that he            sequence that parallels “This Game We Play”; and it does not
received an e-mail from Manson on an unknown date.                 alter the fact that Arnold played “The World Is Not Enough”
Manson essentially could not recall when she first listened to     for others (including Wilson and Broccoli in early January
the demo recording and had “no idea” if she listened to it         1999) well before the date of access.
prior to February 4, 1999. JA 215. But these inconsistencies
do not alter the unrefuted evidence that Hillis left a copy of       The dates of the contracts between Arnold, Black and
the song for Manson at the Royal Garden Hotel on January           MGM also have little value. True, each written contract went
20, 1999, and that it was this copy of the song that Manson        into effect after February 4, 1999. But the undisputed
eventually heard. In this setting, the district court’s decision   evidence shows that Wilson and Broccoli selected David
to disregard the inconsistencies in Manson’s other testimony       Arnold to write the musical score for “The World Is Not
does not amount to an improper weighing of the evidence.           Enough” in September 1998. And in his own deposition,
See Street v. J.C. Bradford & Co., 886 F.2d 1472, 1480 (6th        Crow acknowledges that on February 4, 1999, when he met
Cir.1989) (“The trial court has at least some discretion [at       with Sandoval of MGM, Sandoval told him that Arnold had
summary judgment] to determine whether [plaintiffs’] claim         a “lock on this,” JA 299, “that Mr. Arnold had been hired to
is ‘implausible.’”).                                               write an original score for the film,” JA 298, and that “Mr.
                                                                   Sandoval made it very clear that Mr. Arnold had been hired
  Crow also made a false-pretenses phone call to Shirley           to write the score,” id.
Manson, much like the one he made to Don Black. During
the call, Manson indicated that she first received the song in       Plaintiffs also point to the fact that Arnold never produced
August of 1999. While Manson’s band did not finish                 the demo recording that he made on January 6, 1999. Arnold
Nos. 03-5498/5874              Fogerty, et al. v. MGM         15    16    Fogerty, et al. v. MGM                Nos. 03-5498/5874
                           Group Holdings Corp., et al.                   Group Holdings Corp., et al.

testified that his computer at Air Studios showed that he last                                     IV.
modified the recording on January 6, 1999, but offered no
explanation as to why he could not produce a recording.               Plaintiffs next argue that even if it was appropriate to grant
According to Fogerty and Crow, “a party having control of           summary judgment, the district court erred in awarding fees
information bearing upon a disputed issue may be given the          to MGM. We agree.
burden of bringing it forward and suffering an adverse
inference from [the] failure to do so.” Appellant Br. at 21.          Section 505 of the Copyright Act provides:
Here, however, MGM is the party, not David Arnold, and it
did produce an original copy of the demo recording from Don           In any civil action under this title, the court in its
Black. Plaintiffs do not refute the authenticity of Black’s           discretion may allow the recovery of full costs by or
copy of the song, and at all events never explain why they did        against any party other than the United States or an
not seek discovery of Arnold’s computer to determine if the           officer thereof. Except as otherwise provided by this
January 6th demo could still be retrieved.                            title, the court may also award a reasonable attorney's fee
                                                                      to the prevailing party as part of the costs.
  Fogerty and Crow, lastly, question the reliability of MGM’s
declarations based on the “excessive hours spent” in drafting       17 U.S.C. § 505. Under this provision, a district court may
them. Appellant Br. at 22. MGM’s attorneys “spent                   “impose attorney[s’] fees in frivolous and objectively
approximately 80 hours drafting and revising these                  unreasonable lawsuits.” Murray Hill Publ’ns, Inc. v. ABC
declarations,” plaintiffs argue, and “[i]t does not take 80 hours   Communications, Inc., 264 F.3d 622, 639 (6th Cir. 2001). A
to write a few pages of the truth.” Id. at 22–23. But this          district court’s decision to award attorneys’ fees should be
argument does not prove that the affidavits are false or even       based on such factors as “[the] frivolousness of the claim,”
suggest as much. Whether the scrivener of the affidavits was        the “motivation” of the claimant, the “reasonableness” of the
quite deliberate, was inefficient or merely was confronted          claim and the goal of “deterr[ing]” frivolous claims. Coles v.
with a voluminous record, extensive time in drafting                Wonder, 283 F.3d 798, 804 (6th Cir. 2002). We review a
affidavits (or even excessive time in drafting them) does not       district court’s decision to grant or deny fees for an abuse of
indicate that they are false.                                       discretion. ABC Communications, Inc., 264 F.3d at 639.
                                                                       While plaintiffs’ claim ultimately proved meritless, that
                                                                    does not make it “objectively unreasonable” as a matter of
                                                                    law or fact. See id. at 639–40 (reversing an award of
                                                                    attorneys’ fees under 17 U.S.C. § 505 because “at the time
                                                                    [the] litigation was before the district court, the law on certain
                                                                    relevant aspects of [the] lawsuit was unsettled”); cf.
                                                                    Protective Life Ins. Co. v. Dignity Viatical Settlement
                                                                    Partners, L.P., 171 F.3d 52, 58 (1st Cir. 1999) (“The mere
                                                                    fact that a claim ultimately proves unavailing, without more,
                                                                    cannot support the imposition of Rule 11 sanctions.”). At the
                                                                    time Fogerty and Crow filed their complaint, they knew only
Nos. 03-5498/5874             Fogerty, et al. v. MGM       17    18   Fogerty, et al. v. MGM                Nos. 03-5498/5874
                          Group Holdings Corp., et al.                Group Holdings Corp., et al.

that Crow delivered “This Game We Play” to Michael               depose the individuals and determine whether their
Sandoval and, ten months later, MGM used a very similar          recollections of the facts collectively made sense.
song as the theme song for “The World Is Not Enough.”
Nowhere does MGM contend that filing a complaint on this            The second factor offered by the district court is no more
basis was objectively unreasonable. See Matthew Bender &         persuasive: “Plaintiffs offered no direct evidence to support
Co. v. West Publ’g Co., 240 F.3d 116, 122 (2d Cir. 2001)         one of the two basic elements of copyright infringement.” Id.
(“[T]he imposition of a fee award against a copyright holder     at 8–9. This ambiguous reference points to one of two things.
with an objectively reasonable litigation position will          Either plaintiffs failed to produce direct evidence of copying
generally not promote the purposes of the Copyright Act.”).      or plaintiffs failed to provide evidence of access (they did
                                                                 provide an expert’s opinion that the songs were substantially
  As discovery progressed, other facts surfaced that             similar). As to the former explanation, direct evidence of
legitimately prompted plaintiffs to pursue their claim. They     copying is a rarity and accordingly the failure to provide such
obtained an expert opinion that the two songs were               evidence by itself never supplies an independent basis for
substantially similar; they learned—quite remarkably—that        awarding attorneys’ fees. See Ellis, 177 F.3d at 506 (“Direct
Crow delivered his song to an MGM executive (Sandoval) on        evidence of copying is rare, so frequently the plaintiff will
the same day that Arnold delivered his song to Sandoval; they    attempt to establish an inference of copying [with indirect
learned that Arnold could not produce a demo of the January      evidence].”); see also Segrets, Inc. v. Gillman Knitwear Co.,
6, 1999 version of the song; and they learned of                 207 F.3d 56, 61 (1st Cir. 2000); Arica Inst., Inc. v. Palmer,
inconsistencies in Manson’s and Arnold’s recollections of        970 F.2d 1067, 1072 (2d Cir. 1992); Narell v. Freeman, 872
when Manson first heard “The World Is Not Enough” and            F.2d 907, 910 (9th Cir. 1989).
communicated her comments to Arnold. All told, this
evidence gave plaintiffs objectively legitimate reasons for        As to the latter explanation, it was not until after the
pursuing discovery in the case and for seeing the case through   completion of discovery that the district court could have
to summary judgment.                                             reached the conclusion that plaintiffs failed to provide
                                                                 evidence of access. See Williamson v. United States Dep’t of
   The two reasons given by the district court for awarding      Agric., 815 F.2d 368, 373 (5th Cir. 1987) (“[I]f discovery
fees do not alter this conclusion. The court first noted that    could uncover one or more substantial fact issues, appellant
“Plaintiffs[’] claims were objectively unreasonable in that      was entitled to reasonable discovery to do so.”). Prior to that,
Plaintiffs pursued litigation despite multiple third-party       as noted, plaintiffs had several concerns that reasonably
declarations establishing independent creation of [“The World    prompted them to continue discovery. Indeed, the most
Is Not Enough”] before any of the Defendants had access to       important depositions in the case—those of Arnold, Black,
Plaintiffs’ original work.” D. Ct. Op. at 8 (June 17, 2003).     Manson and Hillis—took place approximately one month
But the declarations contained several inconsistencies and all   before MGM filed its successful motion for summary
of them were submitted by individuals with a personal and        judgment. Fogerty and Crow reasonably believed that these
professional stake in the answer to whether David Arnold         depositions might bear fruit, a conclusion that the district
copied a song that he represented as original. While those       court apparently reached as well when it denied MGM’s first
inconsistencies proved immaterial, plaintiffs were entitled to   motion for summary judgment and request for a stay of
Nos. 03-5498/5874            Fogerty, et al. v. MGM      19
                         Group Holdings Corp., et al.

discovery, both of which were filed before plaintiffs took
these depositions. D. Ct. Order (Jan. 20, 2002).
                            V.
  For these reasons, we affirm the district court’s grant of
summary judgment and reverse its award of attorneys’ fees.
