                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                    February 13, 2006

                                                              Charles R. Fulbruge III
                                                                      Clerk
                              No. 04-30434



LOUIS SAHUC,

                                    Plaintiff-Appellee-Cross-Appellant,

versus

LEE TUCKER and SYED ZEESHAN MOHIUDDIN,

                              Defendants-Appellants-Cross-Appellees.

                          ____________________

          Appeal from the United States District Court
              for the Eastern District of Louisiana
                       No. Civ. A. 02-3759
                      _____________________

Before GARWOOD, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Plaintiff    Sahuc   appeals    from   a   judgment   that   Defendant

Tucker’s photograph, Breaking Mist, did not infringe upon Sahuc’s

copyrighted work, Decatur Street Gate.            Defendants Tucker and

Mohiuddin appeal the district court’s decision not to award them

attorney’s fees.    Having read the briefs, reviewed the record, and

heard oral arguments, we affirm for the following reasons:

     1. Copyright infringement claims require proof of “actionable




     *  Pursuant to 5th Cir. R. 47.5, this 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that this opinion should not be published and is not precedent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.
copying,” which has two elements: (1) factual copying and (2)

substantial similarity between the two works. E.g., Positive Black

Talk, Inc. v. Cash Money Records, Inc., 394 F.3d 357, 368 (5th Cir.

2004).    We agree with the district court’s conclusion that the two

photographs at issue are not substantially similar.

     2.     Awarding attorneys fees is the “rule rather than the

exception” in copyright cases.    Id. at 381.   Nonetheless, recovery

is not automatic.   See Fogerty v. Fantasy, Inc., 510 U.S. 517, 534

(1994). We might agree with Defendants that this case falls within

the general rule if we were deciding this issue in the first

instance. But the decision to award attorneys fees to a prevailing

party in a copyright case is committed “to the discretion of the

district courts.”    Id. at 538 (emphasis added).   Accordingly, our

standard of review is abuse of discretion.        See Positive Black

Talk, 394 F.3d at 380.   The district court set forth the governing

legal standard and analyzed proper factors to guide its discretion.

The court’s findings and analysis are substantially the same as

those made by the same district court in another copyright case in

which this Court upheld the decision to refuse attorney’s fees.

Id. at 382.   In light of our deferential standard of review, we are

persuaded, as was the Court in Positive Black Talk, that the

district court did not abuse its discretion.



AFFIRMED
