FRANK P. FOGERTY and NATHAN CROW v. MGM GROUP HOLDINGS CORP., INC., d/b/a MGM UNIVERSAL MUSIC GROUP, INC., UNIVERSAL…

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0256P (6th Cir.)
File Name: 04a0256p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
FRANK P. FOGERTY and
NATHAN CROW,
Plaintiffs-Appellants,
v.
MGM GROUP HOLDINGS
CORP., INC., d/b/a MGM
UNIVERSAL MUSIC GROUP,
INC., UNIVERSAL STUDIOS,
INC., and EON PRODUCTIONS,
LTD.,
Defendants-Appellees.
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Nos. 03-5498/5874
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 01-00158—William J. Haynes, Jr., District Judge.
Argued: June 9, 2004
Decided and Filed: August 3, 2004
2 Fogerty, et al. v. MGM
Group Holdings Corp., et al.
Nos. 03-5498/5874
*The Honorable John D. Holschuh, United States District Judge for
the Southern District of Ohio, sitting by designation.
Before: MARTIN and SUTTON, Circuit Judges;
HOLSCHUH, District Judge.*
_________________
COUNSEL
ARGUED: W. Gary Blackburn, BLACKBURN &
McCUNE, Nashville, Tennessee, Adam Siegler, THE
SIEGLER LAW GROUP, Beverly Hills, California, for
Appellants. Timothy L. Warnock, BOWEN, RILEY,
WARNOCK & JACOBSON, Nashville, Tennessee, for
Appellees. ON BRIEF: W. Gary Blackburn, BLACKBURN
& McCUNE, Nashville, Tennessee, Adam Siegler, THE
SIEGLER LAW GROUP, Beverly Hills, California, for
Appellants. Timothy L. Warnock, Jay S. Bowen, BOWEN,
RILEY, WARNOCK & JACOBSON, Nashville, Tennessee,
for Appellees.
_________________
OPINION
_________________
SUTTON, Circuit Judge. Plaintiffs Frank P. Fogerty and
Nathan Crow appeal the district court’s order granting
summary judgment and awarding attorneys’ fees to
defendants (collectively, “MGM”) in this copyright
infringement case. As we agree with the district court that
plaintiffs have not presented a sustainable theory of relief, we
affirm that ruling. As we disagree with the district court’s
award of attorneys’ fees, we reverse that ruling.

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

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

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

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

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

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

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testified that his computer at Air Studios showed that he last
modified the recording on January 6, 1999, but offered no
explanation as to why he could not produce a recording.
According to Fogerty and Crow, “a party having control of
information bearing upon a disputed issue may be given the
burden of bringing it forward and suffering an adverse
inference from [the] failure to do so.” Appellant Br. at 21.
Here, however, MGM is the party, not David Arnold, and it
did produce an original copy of the demo recording from Don
Black. Plaintiffs do not refute the authenticity of Black’s
copy of the song, and at all events never explain why they did
not seek discovery of Arnold’s computer to determine if the
January 6th demo could still be retrieved.
Fogerty and Crow, lastly, question the reliability of MGM’s
declarations based on the “excessive hours spent” in drafting
them. Appellant Br. at 22. MGM’s attorneys “spent
approximately 80 hours drafting and revising these
declarations,” plaintiffs argue, and “[i]t does not take 80 hours
to write a few pages of the truth.” Id. at 22–23. But this
argument does not prove that the affidavits are false or even
suggest as much. Whether the scrivener of the affidavits was
quite deliberate, was inefficient or merely was confronted
with a voluminous record, extensive time in drafting
affidavits (or even excessive time in drafting them) does not
indicate that they are false.
16 Fogerty, et al. v. MGM
Group Holdings Corp., et al.
Nos. 03-5498/5874
IV.
Plaintiffs next argue that even if it was appropriate to grant
summary judgment, the district court erred in awarding fees
to MGM. We agree.
Section 505 of the Copyright Act provides:
In any civil action under this title, the court in its
discretion may allow the recovery of full costs by or
against any party other than the United States or an
officer thereof. Except as otherwise provided by this
title, the court may also award a reasonable attorney's fee
to the prevailing party as part of the costs.
17 U.S.C. § 505. Under this provision, a district court may
“impose attorney[s’] fees in frivolous and objectively
unreasonable lawsuits.” Murray Hill Publ’ns, Inc. v. ABC
Communications, Inc., 264 F.3d 622, 639 (6th Cir. 2001). A
district court’s decision to award attorneys’ fees should be
based on such factors as “[the] frivolousness of the claim,”
the “motivation” of the claimant, the “reasonableness” of the
claim and the goal of “deterr[ing]” frivolous claims. Coles v.
Wonder, 283 F.3d 798, 804 (6th Cir. 2002). We review a
district court’s decision to grant or deny fees for an abuse of
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

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

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Nos. 03-5498/5874 Fogerty, et al. v. MGM
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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.

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