14-3367-cv; 15-1573
     Effie Film, LLC v. Murphy

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 16th day of October, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RAYMOND J. LOHIER, JR.,
 8                              Circuit Judges,
 9                GEOFFREY W. CRAWFORD,*
10                              District Judge.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       EFFIE FILM, LLC,
14                Plaintiff-Appellee,
15
16                    -v.-                                  14-3367-cv; 15-1573-cv
17
18       GREGORY MURPHY,
19                Defendant-Appellant.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        Gregory Murphy, pro se, New
23                                             York, N.Y.


                *
                  Judge Geoffrey W. Crawford, of the United States
         District Court for the District of Vermont, sitting by
         designation.
                                                  1
 1
 2   FOR APPELLEE:              Andrew C. Nichols and
 3                              Christopher E. Mills, Winston &
 4                              Strawn LLP, Washington, D.C.,
 5                              Linda T. Coberly, Winston &
 6                              Strawn LLP, Chicago, IL.
 7
 8        Appeal from an order of the United States District
 9   Court for the Southern District of New York (Griesa, J.).
10
11        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12   AND DECREED that Appellee’s motion to dismiss be DENIED and
13   the order of the district court awarding attorney’s fees be
14   REVERSED. The appeal from the imposition of an appeal bond,
15   docketed under 15-1573, is DISMISSED as moot.
16
17        Gregory Murphy, pro se, appeals from the order of the
18   United States District Court for the Southern District of
19   New York (Griesa, J.), awarding costs and attorney’s fees in
20   the amount of $499,068.70 to plaintiff Effie Film, LLC
21   (“Effie Film”). We assume the parties’ familiarity with the
22   underlying facts, the procedural history, and the issues
23   presented for review.
24
25        This appeal arises out of a copyright dispute between
26   Murphy, the author of a stage play and a screenplay (both
27   titled The Countess), and Effie Film, which produced the
28   film Effie Gray based on the screenplay Effie. The Countess
29   and Effie are both fictionalized accounts about the marriage
30   of Effie Gray to art critic John Ruskin, which led to a
31   famous Victorian scandal. Effie Film sued Murphy for a
32   declaratory judgment that Effie did not infringe on The
33   Countess. In its opinion on the merits, the district court
34   granted judgment in favor of Effie Film on the ground that
35   the protectable elements of The Countess were not
36   substantially similar to Effie. Effie Film, LLC v. Murphy
37   (“Effie I”), 

, 560 (S.D.N.Y. 2013).1 We
38   affirmed. Effie Film, LLC v. Murphy (“Effie II”), 

  App’x 631 (2d Cir. 2014) (summary order).
40

         1
              The film Effie Gray had not yet been released at
     the time of the district court’s decision. The court held
     that the film would not be infringing if it adhered to the
     non-infringing version of the screenplay Effie. Effie 

.
                                  2
 1        The district court then awarded costs and attorney’s
 2   fees to Effie Film in the amount of $499,068.70. Under the
 3   Copyright Act, a court “in its discretion may allow the
 4   recovery of full costs” and “may also award a reasonable
 5   attorney’s fee to the prevailing party as part of the
 6   costs.” 17 U.S.C. § 505. “When determining whether to
 7   award attorneys fees, district courts may consider such
 8   factors as (1) the frivolousness of the non-prevailing
 9   party’s claims or defenses; (2) the party’s motivation; (3)
10   whether the claims or defenses were objectively
11   unreasonable; and (4) compensation and deterrence.” Bryant
12   v. Media Right Prods., Inc., 

, 144 (2d Cir.
13   2010). “The third factor—objective unreasonableness—should
14   be given substantial weight.” 

an award of
15   attorney’s fees under § 505 for abuse of discretion but the
16   fees must be “reasonable in terms of the circumstances of
17   the particular case.” Matthew Bender & Co. v. W. Pub. Co.,
18   

, 121 (2d Cir. 2001) (internal quotation marks
19   omitted).
20
21        1. The district court ruled that the “objective
22   unreasonableness” standard was “easily satisfied” based on
23   our “summary affirmance” in Effie II, which concluded that
24   Murphy’s arguments were “without merit.” J.A. 15. The
25   district court cited no other factors to support the award
26   of almost half a million dollars against a litigant, who was
27   (by that stage of the litigation) pro se, other than to
28   state that the award was “consistent with the goals of the
29   Copyright Act because it will help deter future objectively
30   unreasonable lawsuits.” 

       As an initial matter, our summary order was not a
33   “summary affirmance.” Summary affirmance is a rarely used
34   “short-cut” that is available only when an appeal is “truly
35   frivolous.” United States v. Davis, 

, 13 (2d
36   Cir. 2010) (internal quotation marks omitted). The
37   distinction between summary affirmance and a summary order
38   is critical, because while the former may be an adequate
39   basis for awarding attorney’s fees, the latter, without
40   more, is not. Our summary order did not conclude that
41   Murphy’s claims were truly frivolous; rather, we simply
42   affirmed Ellie I after determining that Murphy’s appellate
43   arguments were without merit. Because the district court
44   based its decision solely on its mischaracterization of
45   Ellie II as holding Murphy’s arguments were objectively
46   unreasonable, we conclude that the district court abused its
47   discretion in granting attorney’s fees to Effie Film. We

                                  3
 1   discern no other basis in this record for an award of
 2   attorney’s fees to Effie Film under 17 U.S.C. § 505.
 3
 4        2. Effie Film also moved to dismiss this appeal due to
 5   Murphy’s failure to post an appeal bond. That motion is
 6   denied in light of our strong preference for resolving
 7   disputes on the merits. See Enron Oil Corp. v. Diakuhara,
 8   

, 95 (2d Cir. 1993); see also Baker v. Urban
 9   Outfitters, Inc., 249 F. App’x 845, 846 (2d Cir. 2007)
10   (summary order) (deciding appeal on the merits without
11   reaching failure to comply with appeal bond).
12
13        For the foregoing reasons, we hereby REVERSE the order
14   of the district court awarding attorney’s fees, DENY
15   Appellee’s motion to dismiss, and DISMISS the appeal of the
16   imposition of an appeal bond, docketed under 15-1573, as
17   moot.
18
19                              FOR THE COURT:
20                              CATHERINE O’HAGAN WOLFE, CLERK
21




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