Kts Karaoke, Inc. v. Sony Atv Music Publishing, LLC , 638 F. App'x 586 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 17 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KTS KARAOKE, INC., a California No. 14-55355
corporation; TIMMY SUN TON,
individually, D.C. No. 2:12-cv-00014-MWF-
JEM
Plaintiffs-counter-defendants
- Appellants,
MEMORANDUM*
v.
SONY ATV MUSIC PUBLISHING, LLC;
SONY/ATV DISCOS MUSIC
PUBLISHING, LLC; SONY/ATV LATIN
MUSIC PUBLISHING, LLC; SONY/ATV
SONGS LLC; SONY/ATV SOUNDS
LLC; SONY/ATV TUNES LLC,
Defendants-counter-plaintiffs
- Appellees.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted March 7, 2016**
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: W. FLETCHER, MURGUIA, and OWENS, Circuit Judges.
KTS Karaoke, Inc. (“KTS”) appeals the district court’s denial of its motion
for attorney’s fees under the Copyright Act. Reviewing for abuse of discretion,
Cadkin v. Loose, 569 F.3d 1142, 1146 (9th Cir. 2009), we affirm.
KTS was not the prevailing party as to Sony’s counterclaim for copyright
infringement, the voluntary dismissal of which forms the basis for KTS’s request
for attorney’s fees. See 17 U.S.C. § 505 (providing that “the court may also award
a reasonable attorney’s fee to the prevailing party as part of the costs”). Sony
agreed to voluntarily dismiss its counterclaim against KTS as part of a settlement
agreement in which KTS’s insurer, Travelers, agreed to pay Sony $1.25 million.
Sony was the prevailing party in the deal because it obtained “an enforceable,
judicially sanctioned award of much of the relief [it] sought,” here, money
damages. Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589
F.3d 1027, 1031 (9th Cir. 2009).
The fact that the district court ordered that Sony’s Tennessee suit be
consolidated with the California suit, and that the court denied Sony’s motions for
sanctions, for a preliminary injunction, and to dismiss KTS’s claims does not
render KTS the prevailing party, as those orders did not afford KTS any actual
relief. See id. at 1031 (“[T]he court must formally indicate that the plaintiff is
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entitled to some actual relief—legal or equitable relief—in order to establish a
material alteration.” (emphasis in original)). A favorable determination on a legal
issue is not enough. Citizens for Better Forestry v. U.S. Dep’t of Agric., 567 F.3d
1128, 1133 (9th Cir. 2009). Moreover, Sony was never forced by the court to
reduce the number of allegedly infringing works. See Klamath, 589 F.3d at 1031
(“To receive what one sought is not enough to prevail: the court must require one’s
opponent to give it.”). Finally, we reject KTS’s argument that it did not settle with
Sony or that it was not a party to the settlement agreement. By tendering the
counterclaim to Travelers for it to defend, KTS was bound by Travelers’s right to
control the defense. See Safeco Ins. Co. v. Superior Court, 84 Cal. Rptr. 2d 43, 45
(Ct. App. 1999) (“When the insurer provides a defense to its insured, the insured
has no right to interfere with the insurer’s control of the defense.”).
AFFIRMED.
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