Sahuc v. Tucker, et al

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
February 13, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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

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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

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