Tresona Multimedia, LLC v. Burbank High Vocal Music ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRESÓNA MULTIMEDIA, LLC, an Nos. 17-56006
Arizona limited liability company, 17-56417
Plaintiff-Appellant/Appellee, 17-56419
v. D.C. No.
2:16-cv-04781-
BURBANK HIGH SCHOOL VOCAL SVW-FFM
MUSIC ASSOCIATION; BRETT
CARROLL; JOHN DOE CARROLL, a
married couple; ELLIE STOCKWELL; OPINION
JOHN DOE STOCKWELL, a married
couple; MARIANNE WINTERS; JOHN
DOE WINTERS, a married couple;
GENEVA TARANDEK; JOHN DOE
TARANDEK, a married couple;
LORNA CONSOLI; JOHN DOE
CONSOLI, a married couple;
CHARLES RODRIGUEZ; JOHN DOE
RODRIGUEZ, a married couple,
Defendants-Appellees/Appellants.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted May 13, 2019
Pasadena, California
Filed March 24, 2020
2 TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N
Before: Kim McLane Wardlaw and Andrew D. Hurwitz,
Circuit Judges, and Edward R. Korman, * District Judge.
Opinion by Judge Wardlaw
SUMMARY **
Copyright
The panel affirmed the district court’s summary
judgment in favor of the vocal music director at Burbank
High School and other defendants in a copyright suit and
reversed the district court’s denial of attorneys’ fees to
defendants.
Tresóna Multimedia, LLC, a licensing company,
claimed that the Burbank High School student show choirs
failed to obtain licenses for their use of copyrighted sheet
music in arranging a show choir performance. The panel
concluded that Tresóna lacked standing under 17 U.S.C.
§ 501(b) to sue as to three of the four musical works at issue
because it received its interests in those songs from
individual co-owners of copyright, without the consent of
the other co-owners, and therefore held only non-exclusive
licenses in those works.
*
The Honorable Edward R. Korman, United States District Judge
for the Eastern District of New York, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N 3
Affirming in part on different grounds from the district
court, the panel held that the defense of fair use rendered the
use of the fourth musical work noninfringing. The panel
concluded that the educational purpose of the use was an
enumerated fair use purpose under 17 U.S.C. § 107. In
addition, the purpose and character of the use, which was
transformative, weighed strongly in favor of a finding of fair
use. The nature of the copyrighted work weighed against
fair use because the original arrangement of the song was
creative. Neither (1) the amount and substantiality of the
portion used nor (2) the effect upon the potential market for
or value of the copyrighted work weighed against fair use.
The panel stated that it was especially swayed by the limited
and transformative nature of the use and the work’s
nonprofit educational purposes in enhancing the educational
experience of high school students. The panel concluded
that the music director’s use of a small portion of the song,
along with portions of other songs, to create sheet music for
a new and different high school choir showpiece
performance was a fair use.
Reversing in part, the panel held that the district court
abused its discretion in denying defendants attorneys’ fees
under 17 U.S.C. § 505 because defendants prevailed across
the board in this action in the district court and won a ruling
on their fair use defense on appeal, Tresóna’s arguments
were objectively unreasonable, and an award of fees would
further the purposes of the Copyright Act. The panel
therefore awarded defendants’ attorneys’ fees and remanded
to the district court for the calculation of the award.
4 TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N
COUNSEL
Brad A. Denton (argued), Denton Peterson P.C., Mesa,
Arizona, for Plaintiff-Appellant/Appellee.
Scott D. Danforth (argued) and Marlon C. Wadlington,
Atkinson Andelson Loya Ruud & Romo, Cerritos,
California, for Defendants-Appellees/Appellants Brett
Carroll and John Doe Carroll.
A. Eric Bjorgum (argued), Marc Karish, and Vincent
Pollmeier, Karish & Bjorgum PC, Pasadena, California, for
Defendants-Appellees/Appellants Burbank High School
Vocal Music Association, Ellie Stockwell, John Doe
Stockwell, Marianne Winters, John Doe Winters, Geneva
Tarandek, John Doe Tarandek, Lorna Consoli, John Doe
Consoli, Charles Rodriguez, and John Doe Rodriguez.
OPINION
WARDLAW, Circuit Judge:
In this copyright infringement action against Brett
Carroll, the vocal music director at Burbank High School,
the Burbank High School Vocal Music Association Boosters
Club, and several individual Boosters Club parents, Tresóna
Multimedia, LLC claims that the Burbank High School
student show choirs failed to obtain licenses for their use of
copyrighted sheet music in arranging a show choir
performance. We conclude that Tresóna lacks standing to
sue as to three of the four musical works at issue, and that
the defense of fair use renders the use of the fourth
noninfringing. We therefore affirm the district court’s grant
TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N 5
of summary judgment in favor of Defendants, but reverse its
denial of attorneys’ fees to Carroll and the Boosters Club.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Burbank High School Performances
Giving Rise to this Suit
Burbank High School’s music education program
includes instructional classes and five competitive show
choirs. The competitive show choirs—Out Of The Blue,
Sapphire, Impressions, Sound Dogs, and In Sync—are
“nationally recognized as top competitors in their respective
divisions,” and reportedly inspired the television series
“Glee.” To participate in the show choirs, students “must be
enrolled in one of the four music classes offered [by Burbank
High School] during the instructional day,” and must also
make financial contributions to defray expenses, including
those for costume rentals, competition entry fees,
transportation, choreographers, and professional music
arrangers.
Because student contributions do not cover the full costs
of the competitive show choirs, and many students at
Burbank High School cannot afford to make any financial
contributions, the Boosters Club, a registered 501(c)(3) non-
profit organization, holds several annual fundraisers at
Burbank High School to help cover the show choirs’
expenses. These annual fundraisers include the “Burbank
Blast,” a show choir competition that features performances
by 40 show choirs, as well as the spring “Pop” show, during
which the Burbank High School competitive show choirs
perform their competition sets. To generate revenue from
these events, the Boosters Club sells entry tickets, as well as
advertisements in the event programs.
6 TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N
Brett Carroll is the music director at Burbank High
School, where he teaches an instructional day class and
directs the show choirs. Carroll also acts as a “teacher
liaison/coach” to the Boosters Club. In this capacity, Carroll
decides how the funds raised by the Boosters Club are spent
and selects the show choirs’ choreographers, arrangers, and
accompanists. Carroll also decides, with input from parents,
which competitions the show choirs will attend during the
school year.
Carroll commissioned music arranger Josh Greene, who
is not a party to this action, to create custom sheet music for
two shows: “Rainmaker” and “80’s Movie Montage,”
performed by the group In Sync. “Rainmaker” is an
approximately eighteen-minute performance of stanzas from
many musical works, including a rearranged segment of
“Magic,” a song originally performed by Olivia Newton-
John. The “Magic” segment used by In Sync to close out the
last two minutes of “Rainmaker” includes a rearranged
chorus and small segments from another verse of the song.
“80’s Movie Montage” is an approximately twenty-minute
performance, and incorporates a segment of the song “(I’ve
Had) The Time of My Life” by Bill Medley and Jennifer
Warnes. That segment is approximately sixteen seconds of
the song’s chorus, out of the song’s four-minute and twenty-
two-second runtime, and is used only once in “80’s Move
Montage” to transition between other songs. Each show also
incorporates small segments of several other musical works,
none of which is at issue in this case. In Sync performed
these shows on several occasions, including at the Burbank
Blast fundraiser and during several student competitions.
After In Sync’s performances of “Rainmaker” and “80’s
Movie Montage,” Tresóna, an Arizona-based licensing
company, brought copyright infringement claims against
TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N 7
Carroll, the Boosters Club, and parent members of the
Boosters Club, alleging infringement of Tresóna’s copyright
interests in “Magic” and “(I’ve Had) The Time of My Life.”
Tresóna also alleged that performances by the Jon Burroughs
High School show choirs at the Burbank Blast, which
incorporated segments of the songs “Hotel California” and
“Don’t Phunk With My Heart” violated its copyright
interests in those songs. Tresóna alleged that it was “the only
authorized issuer in the United States and Canada for the . . .
infringed songs,” and that Carroll, the Boosters Club, and the
parents’ use of the songs without obtaining a “custom
arrangement license, grand right license, synchronization
license, or mechanical license” for them infringed its
copyright interests under 17 U.S.C. § 501.
B. Tresóna’s Copyright Interests
Tresóna acquired its copyright interests in the songs
through a series of assignments of those rights. PEN Music
Group (PEN), which is not a party to this action, had
“grant[ed] to Tresóna the exclusive, non-transferable right
. . . to (i) issue Copyright Use Licenses” for “Magic,” “(I’ve
Had) The Time of My Life,” and “Hotel California.” The
relevant contract defines “Copyright Use Licenses” as
“Synchronization Licenses, Custom Arrangement Licenses,
Grand Rights Licenses, [and] Dramatic Rights Licenses[.]”
PEN, in turn, had been assigned its rights to “Magic” by
John Farrar Music (BMI). The contract between PEN and
John Farrar Music (BMI) states that PEN “shall solely own
each and all of [John Farrar Music (BMI)’s] interest in the
musical compositions to the extent that they are written,
composed, co-written or co-composed by John Farrar.” John
Farrar composed the words and music to “Magic,” and John
Farrar Music is the sole copyright claimant of “Magic,”
according to the Copyright Office’s online public catalog of
8 TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N
registration. Despite this chain of title, however, it is
undisputed that Tresóna does not own the public
performance rights to “Magic”; rather, John Farrar Music
(BMI) has retained those rights, as to which it is the sole
owner.
Tresóna failed to provide evidence of its chain of title to
“Hotel California.” It is undisputed, however, that PEN
controlled only co-owner Don Felder’s interest in “Hotel
California,” the rights to which are jointly owned, and only
a 25 percent interest in “(I’ve Had) The Time of My Life.”
Accordingly, neither PEN nor Tresóna is the sole copyright
owner of its purported interests in either song.
As for “Don’t Phunk With My Heart,” Tresóna was
assigned interests from a separate music publisher, The
Royalty Network, which is also not a party to this action.
The contract between The Royalty Network and Tresóna
provides that The Royalty Network “grants to Tresóna the
exclusive, non-transferable right . . . to . . . issue Copyright
Use Licenses” for “Don’t Phunk With My Heart.” However,
the record evidence shows that “The Royalty Network
controls only Kalyanji [Anandji] and Indivar Anandji’s
interest[s] in ‘Don’t Phunk With My Heart,’” a work that is
jointly owned with six other entities. Therefore, neither The
Royalty Network nor Tresóna is the sole copyright owner of
its purported interests in “Don’t Phunk With My Heart.”
C. District Court Proceedings
Despite the minimal evidence of Tresóna’s claim to
exclusive rights in these four musical works, Tresóna
brought this action against Carroll, the Boosters Club, and
the parents, claiming it held exclusive rights in 79 songs,
including “Magic,” “(I’ve Had) The Time of My Life,”
TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N 9
“Hotel California,” and “Don’t Phunk With My Heart.” 1
Carroll, the Boosters Club, the parents, and Tresóna cross-
moved for summary judgment. The district court granted in
part Carroll’s motion for summary judgment, holding that
Tresóna lacked standing to sue under the Copyright Act for
infringement of the songs “(I’ve Had) The Time of My
Life,” “Hotel California,” and “Don’t Phunk With My
Heart,” because Tresóna held only non-exclusive rights to
these works. For Tresóna’s claims based on the song
“Magic,” the district court concluded that Carroll was
entitled to qualified immunity from suit, and that the
Boosters Club and Boosters Club parents could not be held
liable for direct or secondary copyright infringement.
After successfully defending against Tresóna’s claims
on summary judgment, Carroll and the Boosters Club moved
to recover their attorneys’ fees under 17 U.S.C. § 505. The
district court denied the motions, concluding that Carroll and
the Boosters Club had achieved only a minimal level of
success on the merits, and that an award of attorneys’ fees
would not otherwise further the purposes of the Copyright
Act.
Tresóna timely appeals the district court’s summary
judgment orders. Carroll and the Boosters Club appeal the
denial of their motions for attorneys’ fees.
1
Although Tresóna claimed exclusive rights in its complaint to
79 songs used by the show choirs, Tresóna did not allege copyright
infringement as to the remaining 75 songs. Nor did it produce any
evidence in the course of the litigation to support its claim of exclusive
rights in any of the remaining 75 songs.
10 TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291.
We review a district court’s grant of summary judgment
de novo. L.A. Printex Indus., Inc. v. Aeropostale, Inc.,
676 F.3d 841, 846 (9th Cir. 2012). “Summary judgment is
appropriate if, viewing the evidence in the light most
favorable to the nonmoving party, there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Id. (internal quotation marks
omitted).
We review the district court’s denial of attorneys’ fees
under the Copyright Act for an abuse of discretion. Shame
On You Prods., Inc. v. Banks, 893 F.3d 661, 665 (9th Cir.
2018). “A district court abuses its discretion when its
decision is based on an inaccurate view of the law or a
clearly erroneous finding of fact.” Cadkin v. Loose, 569 F.3d
1142, 1147 (9th Cir. 2009) (quoting Traditional Cat Ass’n v.
Gilbreath, 340 F.3d 829, 833 (9th Cir. 2003)).
III. STANDING
The district court correctly granted summary judgment
on Tresóna’s claims of infringement of its rights in the songs
“(I’ve Had) The Time of My Life,” “Hotel California,” and
“Don’t Phunk With My Heart” for lack of standing to sue
under 17 U.S.C. § 501(b).
Under the Copyright Act of 1976, only “[t]he legal or
beneficial owner of an exclusive right under a copyright is
entitled . . . to institute an action for any infringement of that
particular right committed while he or she is the owner of
it.” Id.; see also Silvers v. Sony Pictures Entm’t, Inc.,
402 F.3d 881, 885 (9th Cir. 2005) (en banc). Although
TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N 11
“copyrights are divisible,” and can be freely transferred,
Corbello v. DeVito, 777 F.3d 1058, 1065 (9th Cir. 2015), the
question of standing to sue depends on the nature of the
interest transferred. In the case of joint ownership of
exclusive rights in copyright, for example, “when one co-
owner independently attempts to grant an exclusive license
of a particular copyright interest, that licensee . . . does not
have standing to sue alleged third-party infringers.” Id.
(citing Sybersound Records, Inc. v. UAV Corp., 517 F.3d
1137, 1146 (9th Cir. 2008)). The Corbello court reasoned:
After all, one co-owner, acting
independently, “may not limit the other co-
owners’ independent rights to exploit the
copyright.” . . . Such a conclusion stems from
the self-evident principle that a joint-owner
cannot transfer more than he himself holds;
thus, an assignment or exclusive license from
one joint-owner to a third party cannot bind
the other joint-owners or limit their rights in
the copyright without their consent. In other
words, the third party’s right is “exclusive” as
to the assigning or licensing co-owner, but
not as to the other co-owners and their
assignees or licensees. As such, a third-party
assignee or licensee lacks standing to
challenge the attempted assignments or
licenses of other copyright owners.
Id. (citing Sybersound, 517 F.3d at 1146). 2
2
Looking to the circumstances of that case, we held that the
transferred interest there “constituted a transfer of [a co-owner’s]
derivative-work interest in the copyright, rather than a license.”
12 TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N
Tresóna received its copyright interests in the songs
“(I’ve Had) The Time of My Life,” “Hotel California,” and
“Don’t Phunk With My Heart,” as a license from an
individual co-owner of those interests without the consent of
the other co-owners. Under Corbello and Sybersound,
therefore, Tresóna lacks standing to sue for infringement of
its non-exclusive rights. Tresóna does not contend
otherwise, but argues that a later panel decision, Minden
Pictures, Inc. v. John Wiley & Sons, Inc., 795 F.3d 997 (9th
Cir. 2015), abrogated the holdings in Corbello and
Sybersound that a licensee of only one co-owner’s interests
lacks standing to bring claims for infringement under the
Copyright Act.
Of course, even if Minden Pictures purported to overrule
Sybersound and Corbello, it could not do so, for “[o]nce a
panel resolves an issue in a precedential opinion, the matter
is deemed resolved, unless overruled by the court itself
sitting en banc, or by the Supreme Court.” Hart v.
Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001). “[A] later
three-judge panel considering a case that is controlled by the
rule announced in an earlier panel’s opinion has no choice
but to apply the earlier-adopted rule; it may not any more
disregard the earlier panel’s opinion than it may disregard a
ruling of the Supreme Court.” Id. Therefore, the three-judge
panel in Minden could not have overruled Sybersound and
Corbello’s holdings even if it wanted to.
But Minden Pictures did not purport to overrule
Sybersound or Corbello. It did not even address the issue
Corbello, 777 F.3d at 1066. We made clear that a co-owner of a
copyright is free to transfer that ownership interest to another, as long as
the transfer was only of “exclusive copyright interests that [the co-owner
itself] possesses.” Id.
TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N 13
presented in both cases: whether a co-owner of a copyright
interest can unilaterally grant an exclusive license to that
interest to a third party. In Minden Pictures, “a stock
photography company that serves as [a] licensing agent for
dozens of photographers” granted rights to third parties to
use copyrighted photographs. 795 F.3d at 999–1000.
Although Minden Pictures had the exclusive right to act as
their licensing agent, the photographers had retained the
rights both to “use the photographs themselves and to license
them to others.” Id. at 999. Minden Pictures sued its
licensee, a textbook publisher, for copyright infringement,
claiming that the publisher exceeded the terms of its licensed
use of the photographic works. Id. at 1000–01. The question
before us was whether Minden Pictures had statutory
standing to sue the publisher. Despite the fact that Minden
Pictures had received licenses from the sole owners of the
copyright interests, rather than from co-owners of those
interests, the publisher argued that Minden Pictures did not
receive exclusive licenses from the photographers, as the
photographers retained the right to issue licenses
themselves. Id. at 1004. But, as we pointed out, Minden
Pictures had received an exclusive right to act as the
licensing agent for each of the individual photographers,
which was a grant of rights vis-à-vis the world. Even if that
exclusive right was shared with the photographers, Minden
Pictures would still have standing to sue over infringement
of its license. As we there reasoned:
The reason the [Copyright] Act prevents a
holder of a “nonexclusive license” to use a
copyrighted photograph from bringing an
infringement action against others who use
the same photograph is that such a licensee
has no more than “a privilege that protects
him from a claim of infringement by the
14 TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N
owner” of the copyright. That is, because
such a licensee has been granted rights only
vis-à-vis the licensor, not vis-à-vis the world,
he or she has no legal right to exclude others
from using the copyrighted work, and thus no
standing to bring an infringement suit. But
when a licensee has been granted rights vis-
à-vis the world—even if he or she shares
those rights with another party, including the
owner of the copyright—we see nothing in
the Copyright Act that requires us to deem
such an arrangement a mere “nonexclusive
license” insufficient to give rise to standing
to sue.
Id. (citations omitted).
We accordingly saw “no reason why, having appointed
Minden [Pictures] to manage the commercial use of their
photographs in the first instance as their licensing agent, the
photographers should not also be able to rely on Minden
[Pictures] to protect and defend the licenses that it has issued
on their behalf.” Id. at 1005. In other words, even if an
exclusive right is shared between two entities, a sole owner
can promise exclusivity to just those two, while a co-owner
cannot make that same promise unilaterally. Because the
issue of whether a co-owner of a copyright interest can
unilaterally grant an exclusive license to that interest was not
present in Minden Pictures, Tresóna’s reliance on Minden
Pictures is misplaced.
The district court correctly held that Tresóna lacked
standing under 17 U.S.C. § 501(b) to bring copyright
infringement claims based on the songs “(I’ve Had) The
Time of My Life,” “Hotel California,” and “Don’t Phunk
TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N 15
With My Heart,” as Tresóna received its interests in those
songs from individual co-owners of copyright, without the
consent of the other co-owners, and therefore held only non-
exclusive licenses in those works.
IV. FAIR USE
We affirm the district court’s grant of summary
judgment against Tresóna on its claim of infringement of
“Magic,” but not on the ground of qualified immunity. From
the outset of this litigation, Carroll asserted the defense of
fair use, and on cross-motions for summary judgment
Tresóna sought a ruling that there was no fair use. 3 The
district court, however, ruled in favor of Carroll on qualified
immunity grounds, holding that “since teaching is explicitly
listed as fair use [in the Copyright Act], a public school
teacher acting in his teaching capacity would be reasonable
in believing the fair use defense applies.” It thus elided the
question of whether Carroll’s use of a rearranged segment of
a copyrighted musical work in the arranged show music was
an infringement. But that question begs to be answered, for
show choirs and the arrangements they perform are not
limited to public schools where the defense of qualified
immunity might be invoked by public school teachers. And
the defense of fair use, if applicable, should cover “teaching”
whether in a private or public setting. Moreover, the fair use
defense renders a use noninfringing, and has long served as
an important defense in copyright law, unlike the qualified
immunity defense which has never been used in our circuit
3
The Booster’s Club also asserted the defense of fair use.
16 TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N
or by the Supreme Court to shield a public official from a
copyright infringement action. 4
First recognized by United States courts in 1841, see
Folsom v. Marsh, 9 F. Cas. 342, 348 (C.C.D. Mass. 1841)
(No. 4901), the fair use doctrine is an “equitable rule of
reason,” Sony Corp. of Am. v. Universal City Studios, Inc.,
464 U.S. 417, 448 (1984), that “permits courts to avoid rigid
application of the copyright statute when, on occasion, it
would stifle the very creativity which that law is designed to
foster,” Stewart v. Abend, 495 U.S. 207, 236 (1990) (quoting
Iowa State Univ. Research Found., Inc. v. Am. Broad. Cos.,
621 F.2d 57, 60 (2d Cir. 1980)). In Folsom, Justice Story
formulated the issue of fair use as a question of “whether this
is a justifiable use of the original materials, such as the law
recognizes as no infringement of the copyright of the
plaintiffs,” 9 F. Cas. at 348, and he identified many of the
factors that continue to guide our analysis today: “the nature
and objects of the selections made, the quantity and value of
the materials used, and the degree in which the use may
prejudice the sale, or diminish the profits, or supersede the
objects, of the original work.” Id. Although Congress has
amended federal copyright law numerous times in our
history since the original statute was enacted in 1790, it first
codified the fair use doctrine in section 107 of the Copyright
Act of 1976. In so doing, Congress sought to restate the
judicial doctrine of fair use in section 107, “not to change,
narrow, or enlarge it in any way.” H.R. Rep. No. 94-1476,
at 66 (1976). Congress, however, acknowledged that “courts
4
Professor Nimmer has recognized that “[s]ome courts have applied
[the qualified immunity] doctrine in the copyright context, [while] others
on occasion have denied it,” without endorsing either approach. See
3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright
§ 12.01[E][2][b] (2019).
TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N 17
must be free to adapt the [fair use] doctrine to particular
situations on a case-by-case basis.” Id.
In section 107, Congress first provides examples of
traditionally noninfringing uses of copyright:
[n]otwithstanding the provisions of sections
106 and 106A, the fair use of a copyrighted
work, including such use by reproduction in
copies or phonorecords or by any other
means specified by that section, for purposes
such as criticism, comment, news reporting,
teaching (including multiple copies for
classroom use), scholarship, or research, is
not an infringement of copyright.
Congress then lists four nonexclusive “factors to be
considered” in determining whether an unauthorized use is
infringing:
(1) the purpose and character of the use,
including whether such use is of a
commercial nature or is for nonprofit
educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the
portion used in relation to the copyrighted
work as a whole; and
(4) the effect of the use upon the potential
market for or value of the copyrighted work.
Id.
18 TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N
We first look to whether the allegedly infringing use falls
into the categories of uses given by Congress as examples of
noninfringing uses. See Leadsinger, Inc. v. BMG Music
Publ’g, 512 F.3d 522, 530 (9th Cir. 2008); 4 Nimmer
§ 13.05[A][1][a] (explaining the importance of the preamble
examples to the fair use analysis). We then turn to the
nonexclusive list of factors, looking not only to the statutory
language of section 107 but also to prior judicial decisions
addressing the contours of fair use. See Campbell v. Acuff
Rose Music Inc., 510 U.S. 569, 577 (1994) (“Congress meant
§ 107 to restate the present judicial doctrine of fair use, not
to change, narrow, or enlarge it any way.” (quotation
omitted)). We analyze these factors together in light of the
purpose of copyright law, see id. at 578, keeping in mind that
copyright’s limited grant of monopoly privileges ultimately
furthers the public good by “promot[ing] the Progress of
Science and useful Arts,” U.S. Const. art. I, § 8, cl. 8; see
also Harper & Row, Publishers, Inc. v. Nation Enters.,
471 U.S. 539, 546 (1985). We also closely examine the
particular facts presented by this case because the fair use
analysis is a factually driven one.
Carroll’s use of the musical work was in his capacity as
a teacher in the music education program at Burbank High
School. Such an educational use weighs in favor of fair use.
But that does not end our inquiry because the preamble’s
“text employs the terms ‘including’ and ‘such as’ . . . to
indicate the ‘illustrative and not limitative’ function of the
examples given.” Campbell, 510 U.S. at 577 (quoting
17 U.S.C. § 101). We next analyze and weigh the listed
factors.
TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N 19
A. The Purpose and Character of the Use, Including
Whether Such Use Is of a Commercial Nature or Is for
Nonprofit Educational Purposes
We first look to “the purpose and character of the use.”
17 U.S.C. § 107(1). Josh Greene’s arrangement of segments
from several musical works, including the chorus from
“Magic,” was for “nonprofit educational purposes,” id., and
the resulting work was transformative. Greene’s new
arrangement became an eighteen-minute-long competitive
choir show, “Rainmaker,” that included the rearranged
chorus of “Magic.” It was performed by students as part of
Burbank’s music education program. Part of the proceeds
went to the nonprofit Boosters Club to support other aspects
of the music education program and the work of the show
choir. This use was not of a traditional commercial nature,
but rather for the nonprofit education of the students in the
music program. 5 Carroll distributed the sheet music
arranged by Greene at no charge to the students. See Marcus
v. Rowley, 695 F.2d 1171, 1175 (9th Cir. 1983) (finding a
nonprofit educational purpose in a teacher’s copying of a
5
This case is thus far removed from those circumstances previously
held to have a commercial purpose. See, e.g., Campbell, 510 U.S.
at 582–83 (rap song parody sold to the public); Disney Enters., Inc. v.
VidAngel, Inc., 869 F.3d 848, 861 (9th Cir. 2017) (paid streaming service
that filtered objectionable content from movies and television shows);
Seltzer v. Green Day, Inc., 725 F.3d 1170, 1178 (9th Cir. 2013) (use of
an image in the video backdrop of Green Day’s musical tour); SOFA
Entm’t, Inc. v. Dodger Prods., 709 F.3d 1273, 1278–79 (9th Cir. 2013)
(use of a television clip in the stage musical Jersey Boys); Leadsinger,
512 F.3d at 530 (explaining the plaintiffs’ “commercial [purpose] . . . to
sell its karaoke device for profit”).
20 TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N
cake decorating booklet and distribution to students at no
charge).
However, “the mere fact that a use is educational and not
for profit does not insulate it from a finding of
infringement.” Campbell, 510 U.S. at 584; Marcus,
695 F.2d at 1175. “The central purpose of this investigation
is to see, in Justice Story’s words, whether the new work
merely ‘supersede[s] the objects’ of the original creation or
instead adds something new, with a further purpose or
different character, altering the first with new expression,
meaning, or message; it asks, in other words, whether and to
what extent the new work is ‘transformative.’” Campbell,
510 U.S. at 579 (alteration in original) (citations omitted).
Works are transformative when “new expressive content or
message is apparent,” even if “the allegedly infringing work
makes few physical changes to the original or fails to
comment on the original.” Seltzer v. Green Day, Inc.,
725 F.3d 1170, 1177 (9th Cir. 2013). “[T]he more
transformative the new work, the less will be the significance
of other factors . . . .” Campbell, 510 U.S. at 579.
“Magic” was an original song in the 1980 musical movie
fantasy “Xanadu.” Olivia Newton-John played Kira, a muse
descended from Mount Olympus, who encourages and
inspires the male protagonist, Sonny, to pursue his dream of
opening a fantastical nightclub, Xanadu. “Magic” plays
during their first encounter, reprises first when Kira must
return to Olympus, and then again when Kira seemingly
reappears as a Xanadu waitress. It is thus used as a vehicle
of inspiration for pursuit of one’s dreams and love.
“Rainmaker” is an entirely different theatrical work—a
show piece for the high school choir that reworks pieces
from multiple songs to tell a story with new expressive
content and meaning. “Rainmaker” tells the story of a local
TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N 21
Dust Bowl-era community ravaged by drought. After a
stranger visits the town, he promises rain in return for faith
in his magical powers and performs several miracles to
encourage the townspeople to believe in him. When the
town’s last holdout, the Sheriff, drops to his knees to
proclaim his faith, lifesaving rain finally arrives. The
townspeople celebrate the newfound rain, singing the
rearranged chorus of “Magic,” including additional, new
lyrics.
This rearrangement of “Magic” along with other musical
works was thus transformative. Greene did not “simply
omit[] portions” of the original work while retaining the
“same intrinsic entertainment value.” Disney Enters., Inc. v.
VidAngel, Inc., 869 F.3d 848, 861 (9th Cir. 2017). Rather,
“Rainmaker” uses a portion of “Magic” by adding “new
expression, meaning, [and] message.” Campbell, 510 U.S.
at 579; see also Seltzer, 725 F.3d at 1176–77 (finding the use
of a street art image transformative when it is used in a four-
minute video to comment on religion); Cariou v. Prince,
714 F.3d 694, 708 (2d Cir. 2013) (holding the use of
photographs in a series of paintings was transformative
because the changes resulted in a “fundamentally different
aesthetic”); SOFA Entm’t, Inc. v. Dodger Prods., 709 F.3d
1273, 1278 (9th Cir. 2013) (“By using [a TV clip] as a
biographical anchor, [Defendant] put the clip to its own
transformative ends.”); L.A. News Serv. v. CBS Broad., Inc.,
305 F.3d 924, 939 (9th Cir. 2002) (finding transformative
the inclusion of a video clip within a longer montage and
edited for dramatic effect). Because Greene’s rearrangement
of a portion of “Magic” created a new work with new
meaning, it was a transformative use. Seltzer, 725 F.3d
at 1177.
22 TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N
The “purpose and character” factor of the use of “Magic”
weighs strongly in favor of a finding of fair use.
B. The Nature of the Copyrighted Work
In analyzing the second factor, “the nature of the
copyrighted work,” we examine “whether the work is
informational or creative.” Worldwide Church of God v.
Phila. Church of God, Inc., 227 F.3d 1110, 1118 (9th Cir.
2000). We keep in mind “that creative works are ‘closer to
the core of intended copyright protection’ than informational
and functional works.” Dr. Seuss Enters. v. Penguin Books
USA, Inc., 109 F.3d 1394, 1402 (9th Cir. 1997) (quoting
Campbell, 510 U.S. at 586). Because the original
arrangement of the song “Magic” is undoubtedly creative,
this factor weighs against a finding of fair use. See
Leadsinger, 512 F.3d at 531 (recognizing that “[o]riginal
song lyrics are a work of creative expression”).
C. The Amount and Substantiality of the Portion Used in
Relation to the Copyrighted Work as a Whole
The third factor examines whether “the amount and
substantiality of the portion used in relation to the
copyrighted work as a whole . . . [is] reasonable in relation
to the purpose of the copying.” Campbell, 510 U.S. at 586.
“[W]e recognize that the extent of permissible copying
varies with the purpose and character of the use.” Id. at 586–
87; see 4 Nimmer § 13.05[A][3] (“The proper analysis here
includes a determination of not just quantitative, but also
qualitative substantiality.”). As a result, “this factor
necessarily overlaps somewhat with the first factor.” Seltzer,
725 F.3d at 1178. “If the secondary user only copies as much
as is necessary for his or her intended use, then this factor
will not weigh against” fair use. Kelly v. Arriba Soft Corp.,
336 F.3d 811, 820–21 (9th Cir. 2003).
TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N 23
Here, the segment taken from the song “Magic” is
approximately twenty seconds of a four-minute and twenty-
two second song. The portion that was used, however,
incorporates the song’s principle chorus, which is the central
element of the musical work, and is repeated more than once.
Thus, the copied portion is undoubtedly a qualitatively
significant portion of “Magic.” See Campbell, 510 U.S.
at 587–89. However, as the Supreme Court has explained in
discussing both parody and news reporting, “context is
everything, and the question of fairness asks what else the
[copier] did besides go to the heart of the original.” Id.
at 589. Even “entire verbatim reproductions are justifiable
where the purpose of the work differs [enough] from the
original.” Mattel, Inc. v. Walking Mountain Prods., 353 F.3d
792, 803 n.8 (9th Cir. 2003) (citing Kelly, 336 F.3d at 821).
In this case, Greene’s rearrangement did not simply copy
several lines from one chorus of the song and repeat it, but
embedded that portion into a larger, transformative choir
showpiece that incorporated many other works, and imbued
that entire piece with new expression and meaning not
contained within any of the individual works. Carroll thus
“departed markedly from” the original lyrics, Campbell,
510 U.S. at 589, incorporating the chorus of “Magic” into a
new and different story that also furthered high school
students’ musical learning and development. The new work
is not a verbatim copy, nor one in which the transformative
use “is so insubstantial, as compared to the copying, that the
third factor must be resolved as a matter of law against the
[Defendants].” Id.
In light of Carroll’s non-profit educational and
transformative use of “Magic,” the amount and substantiality
of the portion used does not weigh against of fair use.
24 TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N
D. The Effect of the Use Upon the Potential Market for or
Value of the Copyrighted Work
The fourth factor, “the effect of the use upon the
potential market for or value of the copyrighted work,”
17 U.S.C. § 107(4), requires us “to consider not only the
extent of market harm caused by the particular actions of the
alleged infringer, but also whether unrestricted and
widespread conduct of the sort engaged in by the defendant
would result in a substantially adverse impact on the
potential market for the original,” Campbell, 510 U.S. at 590
(alterations and quotations omitted). “This inquiry must take
account not only of harm to the original but also of harm to
the market for derivative works.” Harper & Row, 471 U.S.
at 568. When, as here, a use is plainly transformative,
“market substitution is at least less certain, and market harm
may not be so readily inferred.” Campbell, 510 U.S. at 591.
Carroll and the Boosters Club submitted uncontroverted
evidence that the sheet music incorporating twenty seconds
of “Magic” was used only by students and their
accompanists during the show choir’s extracurricular
activities as part of their performance of a new work.
Although the creation of sheet music incorporating the
copyrighted work is a derivative use, the twenty seconds
used in the “Rainmaker” choir piece is not a substitute for
the song “Magic.” See SOFA Entm’t, 709 F.3d at 1280
(“Where the secondary use is not a substitute for the original
and does not deprive the copyright holder of a derivative use,
the fourth factor weighs in favor of fair use.”).
As Professor Nimmer explains, “if, regardless of
medium, defendant’s work performs a different function
from plaintiff’s, then notwithstanding its use of substantially
similar material, the defense of fair use may prevail.” 4
Nimmer § 13.05[B][1]. Fair use exists when “[t]hose
TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N 25
interested in obtaining plaintiff’s music for musical purposes
would not find their need fulfilled by purchasing” the
defendant’s allegedly infringing work. Id.; cf. Campbell,
510 U.S. at 591 (explaining that parody is not likely to
substitute for an original work because the two “usually
serve different market functions”). A consumer interested in
acquiring sheet music for “Magic” would not purchase the
sheet music for “Rainmaker,” as it omits much of the song
except the chorus, and even the portions that are included are
substantially rearranged. Similarly, a person wishing to
purchase the sheet music for “Magic” in order to play or
perform that song would necessarily purchase the sheet
music for the song itself from the owner of the performance
rights—not the sheet music for “Rainmaker.” See Kelly, 336
F.3d at 821–22 (finding no market harm where a person
could not use the allegedly infringing work, a thumbnail
photograph, as a substitute for the copyrighted high-
resolution photograph); L.A. News Serv., 305 F.3d at 941
(finding a transformative use of a news clip on Court TV
“quite unlikely to affect the relevant market”). Thus, the use
of “Magic” in “Rainmaker” does not affect the consumer
market for the sheet music in the song at all. It is difficult to
see how even widespread and unrestricted use of the chorus,
in the context of nonprofit show choir performances, could
displace the market for sheet music for the entire song.
Of course, “it is a given in every fair use case that
plaintiff suffers a loss of a potential market if that potential
is defined as the theoretical market for licensing the very use
at bar.” 4 Nimmer § 13.05[A][4]; see also Pierre N. Leval,
Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1124
(1990) (“By definition every fair use involves some loss of
royalty revenue because the secondary user has not paid
royalties.”). However, “a copyright holder cannot prevent
others from entering fair use markets merely ‘by developing
26 TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N
or licensing a market for parody, news reporting,
educational, or other transformative uses of its own creative
work.’” Bill Graham Archives v. Dorling Kindersley Ltd.,
448 F.3d 605, 614–15 (2d Cir. 2006) (quoting Castle Rock
Entm’t Inc. v. Carol Publ’g Grp., 150 F.3d 132, 145 n.11 (2d
Cir. 1998)). Nor does the decision by secondary users to
pay, or not pay, establish whether fair use exists. See
Campbell, 510 U.S. at 585 n.18. Because the use in this case
“falls within a transformative market,” Tresóna was not
harmed by the loss of any fees for the licensing of the song
“Magic.” Bill Graham Archives, 448 F.3d at 615.
E. Conclusion
We weigh each of these factors in light of the Copyright
Act’s purpose “to stimulate artistic creativity for the general
public good.” Twentieth Century Music Corp. v. Aiken,
422 U.S. 151, 156 (1975). The educational use of “Magic”
falls into an enumerated fair use purpose and three of the
four factors we consider are neutral or weigh in favor of
finding that Defendants’ use of “Magic” was fair use. We
are especially swayed here by the limited and transformative
nature of the use and the work’s nonprofit educational
purposes in enhancing the educational experience of high
school students. We conclude that Carroll’s use of a small
portion of the song “Magic,” along with portions of other
songs, to create sheet music for a new and different high
school choir showpiece performance was a fair use. 6
6
Because we affirm the district court’s grant of summary judgment
as to Carroll on the alternative ground of fair use, we also affirm the
district court’s grant of summary judgment on Tresóna’s claim for
vicarious copyright infringement against the Boosters Club and parents
on this ground. See Fox Broad. Co., Inc. v. Dish Network, LLC, 747 F.3d
1060, 1068 (9th Cir. 2014) (“Secondary liability for copyright
TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N 27
V. ATTORNEYS’ FEES
The district court denied attorneys’ fees to Defendants
because it granted summary judgment on grounds of
standing and qualified immunity, procedural issues it found
unrelated to the purposes of copyright. Having declined to
rule on the critical question of fair use, the district court
found that Defendants’ status as the prevailing party did not
weigh as heavily toward an award of attorneys’ fees. But
Defendants’ fair use defense, upon which we rely in part
today, goes to the heart of the copyright dispute in this case.
Indeed, even in its qualified immunity ruling, the district
court analyzed fair use to the extent that it found that it was
reasonable for Carroll to believe that his use was
noninfringing.
Under section 505 of the Copyright Act, a district court
may award a “reasonable attorney’s fee” and costs to the
prevailing party. See 17 U.S.C. § 505. “[D]efendants who
seek to advance a variety of meritorious copyright defenses
should be encouraged to litigate them to the same extent that
plaintiffs are encouraged to litigate meritorious claims of
infringement.” Fogerty v. Fantasy, Inc., 510 U.S. 517, 527
(1994). The touchstone of the decision to award attorneys’
fees is whether the successful defense, and the circumstances
surrounding it, further the Copyright Act’s “essential goals.”
Kirtsaeng v. John Wiley & Sons, Inc, 136 S. Ct. 1979, 1989
(2016). Courts “may consider (but [are] not limited to) five
factors in making an attorneys’ fees determination . . . (1) the
degree of success obtained, (2) frivolousness,
(3) motivation, (4) [objective] reasonableness of [the] losing
infringement does not exist in the absence of direct infringement by a
third party.” (quoting A&M Records, Inc. v. Napster, Inc., 239 F.3d
1004, 1013 n.2 (9th Cir. 2001))).
28 TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N
party’s legal and factual arguments, and (5) the need to
advance considerations of compensation and deterrence.”
Wall Data Inc. v. L.A. Cty. Sheriff’s Dep’t, 447 F.3d 769,
787 (9th Cir. 2006). Substantial weight should be accorded
to the fourth factor. Shame On You, 893 F.3d at 666 (citing
Kirtsaeng, 136 S. Ct. at 1985, 1989).
Defendants prevailed across the board in this action in
the district court and won a ruling on their fair use defense
on appeal. This complete success weighs in favor of an
award of attorneys’ fees. See id. at 667; Glacier Films
(USA), Inc. v. Turchin, 896 F.3d 1033, 1038 (9th Cir. 2018).
Although the district court properly noted that a fee award is
less justified when “copyright defendants do not . . . reach
the merits, prevailing instead on technical defenses,”
Fantasy, Inc. v. Fogerty, 94 F.3d 553, 560 (9th Cir. 1996),
Defendants have now prevailed on their defense of fair use,
a substantive defense at the heart of copyright law. As we
have previously recognized, “[w]hen a fee award encourages
a defendant to litigate a meritorious fair use claim against an
unreasonable claim of infringement, the policies of the
Copyright Act are served.” SOFA Entm’t, 709 F.3d at 1280.
We examine objective reasonableness next, because that
factor is given “substantial” weight. Shame On You, 893
F.3d at 666. While “a legal argument that loses is not
necessarily unreasonable,” id., this is not “a close and
difficult case,” Seltzer, 725 F.3d at 1181. Rather, Tresóna’s
arguments are objectively unreasonable. As to standing,
Tresóna should have known that Sybersound rendered its
chances of prevailing on three of the four songs remaining at
summary judgment “slim to none.” SOFA Entm’t, 709 F.3d
at 1280. Tresóna’s argument that Minden Pictures overruled
Sybersound ignored the significant differences between
those two cases. The argument was also legally
TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N 29
unreasonable because our opinion in Minden Pictures did
not purport to overrule Sybersound; nor did it address the
precise standing issue decided in Sybersound and Corbello.
Tresóna’s fair use argument as to the one song it did have
exclusive rights to, “Magic,” was likewise objectively
unreasonable. Seltzer, in which we confronted “a close and
difficult case” and found an action for infringement
reasonable, is instructive in its differences. 725 F.3d at 1181.
There, the band Green Day used a drawing of Scream Icon,
a screaming, contorted face, in a video backdrop for a
commercial concert tour. Id. at 1173–74. We explained that
the “transformation was far from obvious given Green Day’s
only slight alterations to the original,” and each of the
remaining three fair use factors pointed in a different
direction: the second factor weighed against fair use, the
third was neutral, and the fourth weighed in favor of fair use.
Id. at 1181. Here, in contrast, the use falls plainly within the
enumerated fair use purposes of “teaching” and “nonprofit
education[],” 17 US.C. § 107, and the portions of the song
taken were used in a highly transformative work.
Tresóna did more than simply pursue an aggressive
litigation strategy. It sued a public school teacher, a not-for-
profit Boosters Club, and parent volunteers. Both during
litigation, and in pre-litigation communications with Carroll,
Tresóna repeatedly mischaracterized its copyright interests
in the songs at issue by claiming to be the sole entity
empowered to issue licenses. In light of Tresóna’s minimal
and belatedly produced evidence supporting its claimed
chain-of-title, these communications appear specifically
designed to frighten Carroll and the Boosters Club into
purchasing licenses from Tresóna, rather than to legitimately
enforce its limited licensing interests or those of the true
copyright owners. Indeed, Tresóna’s initial complaint
30 TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N
alleged exclusive rights in 79 songs used by the Burbank
show choirs. And it was not until after briefing on Carroll’s
summary judgment motion was complete that Tresóna
belatedly produced any evidence of its chain of title, which
demonstrated its claimed interests were almost entirely
unsubstantiated. None of these actions furthers the purposes
of the Copyright Act. SOFA Entm’t, 709 F.3d at 1280–81.
Courts have a legitimate interest in deterring the type of
litigation conduct in which Tresóna engaged, and in
compensating those who have been harmed by such conduct.
Although the district court noted that it “[did] not believe
that [Tresóna] will groundlessly reassert these claims,” the
basis for that finding is unclear. Tresóna groundlessly
asserted at least three claims of infringement in this very
case, while simultaneously representing that it could have
brought many more such claims. And while, after almost
four years of litigation, Tresóna turned out to have standing
as to the fourth remaining claim of infringement, it lost both
in the district court and on appeal on two independent legal
theories. As much of this litigation was avoidable from the
beginning based on settled law when Tresóna filed its
complaint, awarding attorneys’ fees to Defendants
appropriately serves the interest in deterrence. See
Kirtsaeng, 136 S. Ct. at 1987 (explaining that awarding fees
encourages “[t]he copyright holder with no reasonable
infringement claim . . . not to bring suit in the first
instance”).
Awarding Defendants their attorneys’ fees insures that
they are properly compensated for defending against
overreaching claims of copyright infringement and pressing
a defense that benefits those educating our youth. An award
of attorneys’ fees here assures that “an overzealous
monopolist [cannot] use his copyright to stamp out the very
TRESÓNA MULTIMEDIA V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N 31
creativity that the [Copyright] Act seeks to ignite,” SOFA
Entm’t, 709 F.3d at 1278, allowing for greater breathing
room for classroom educators and those involved in similar
educational extracurricular activities.
The district court abused its discretion in denying
Defendants’ motion for attorneys’ fees. We therefore award
Defendants’ attorneys’ fees and remand to the district court
for the calculation of the award. See Mag Jewelry Co. v.
Cherokee, Inc., 496 F.3d 108, 124 (1st Cir. 2007) (reversing
the district court’s denial of fees and remanding for the
calculation of the amount).
VI. CONCLUSION
We affirm the grant of summary judgment in favor of
Defendants but reverse the denial of attorneys’ fees under
17 U.S.C. § 505.
Costs on appeal shall be awarded to Defendants.
AFFIRMED IN PART; REVERSED IN PART;
REMANDED.