THOMPSON, Circuit Judge.
Architectural firms T-Peg
Because this is an appeal from a fee award, we present only enough discussion of the underlying facts to provide the reader with some context.
Stanley Isbitski wished to build his dream house on a plot of land he owned in Salisbury, New Hampshire. To this end, he consulted with both T-Peg and VTW. T-Peg drew up a preliminary design in 1999 and then worked with Isbitski to refine the design. In May 2001, T-Peg registered its updated design with the Copyright Office. Meanwhile, in 2000, Isbitski
On October 23, 2003, T-Peg sued VTW and Isbitski for copyright infringement. On February 9, 2005, the district court granted summary judgment for VTW and Isbitski, concluding inter alia that no reasonable jury could find that T-Peg's and VTW's designs were substantially similar. T-Peg appealed, and we reversed. T-Peg, Inc. v. Vt. Timber Works, Inc., 459 F.3d 97, 102 (1st Cir.2006). Interpreting the Architectural Works Copyright Protection Act (Pub.L. No. 101-650, §§ 701-706, 104 Stat. 5089, 5133-34 (1990)) for the first time, we held that a jury could find, whether by direct or indirect evidence, that VTW had copied T-Peg's design. Id. at 111-16. Accordingly, we remanded for trial. Id. at 116.
After considerable delay involving more dispositive motions, some mediation efforts, and an attempt at an interlocutory appeal, the case went to trial on September 17, 2009. Six days later, the jury found in VTW's favor and rejected T-Peg's infringement claims. VTW moved for fees that the district court, in its discretion, may grant the prevailing party in a copyright claim. 17 U.S.C. § 505. VTW voluntarily deducted certain fees from its request but still sought over $200,000, a steep sum for a case involving only $66,350 in damages. T-Peg opposed the motion, arguing that equitable principles (e.g., the absence of any bad faith on T-Peg's part) called for the court to exercise its discretion to deny any fee award entirely.
In a fifteen-page order, the district court granted VTW a fee award of $35,000. In doing so, the court carefully considered the extent to which VTW actually prevailed, weighed the equities as urged by T-Peg, and ultimately concluded that its "modest award" struck the "appropriate balance." Both parties appealed, T-Peg challenging the grant of any award at all and VTW challenging the award's amount. We have jurisdiction under 28 U.S.C. § 1291.
The Copyright Act allows a district court, in its discretion, to "award a reasonable attorney's fee to the prevailing party" in a copyright-infringement case. 17 U.S.C. § 505. In Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 & n. 19, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994), the Supreme Court provided a non-exclusive list of essentially equitable factors to guide the lower courts in deciding whether or not to award attorney's fees, and if so how much. See also Matthews v. Freedman, 157 F.3d 25, 29 (1st Cir.1998) (affirming the district court's application of the Fogerty factors as a "rational explanation for its decision to award fees" and "equally so as to the amount awarded—$25,000 out of the $60,000 originally sought"). Specifically, these factors are "frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence." Fogerty, 510 U.S. at 534 n. 19, 114 S.Ct. 1023 (internal quotation marks omitted).
Because the district court has broad discretion to fashion an appropriate award in line with the Fogerty factors, our abuse-of-discretion review is "`extremely deferential.'" Airframe Sys., Inc. v. L-3 Commc'ns Corp., 658 F.3d 100, 109 (1st Cir.2011) (quoting Latin Am. Music Co. v. ASCAP, 642 F.3d 87, 91 (1st Cir.2011)). Indeed, we will set aside a fee award
T-Peg argues that no award was appropriate because the district court applied a factor it says was improper: whether a fee award would "deter plaintiffs with reasonable claims, and defendants with meritorious defenses, from litigating in a manner greatly disproportional to the matter at stake." Although the district court's reasoning flows directly from one of the Fogerty factors—"considerations of compensation and deterrence," see Fogerty, 510 U.S. at 534 n. 19, 114 S.Ct. 1023—T-Peg nevertheless protests that Fogerty does not allow a district court to use a fee award as a mechanism for deterring certain trial strategies.
T-Peg's protest is groundless. The Copyright Act allows the district court to impose a "reasonable" fee award. The Supreme Court has said broadly that a district court may consider principles of deterrence in exercising its discretion to fashion a reasonable award. T-Peg cites no law for the proposition that a district court may deter only out-of-court and bad-faith conduct. To the contrary, other courts have specifically held that a district court applying Fogerty and its progeny may fashion a fee award for the purpose of discouraging "overly aggressive litigation tactics" and encouraging parties "to litigate in a more responsible, realistic manner." Bridgeport Music, Inc. v. WB Music Corp., 520 F.3d 588, 595 (6th Cir.2008); cf. Woodhaven Homes & Realty, Inc. v. Hotz, 396 F.3d 822, 824 (7th Cir.2005) (remanding for the imposition of an attorneyfee award with the caveat that the requested amount, "over $220,000, seems quite excessive," given that the plaintiff "claimed only $55,000 in damages"). Commentators agree. See 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 14.10[D][3][b] (2011) (noting that "hard-ball litigation tactics ... merit an award of fees"). Despite T-Peg's protestations, for the district court to rely on the same principles here was simply not an abuse of discretion.
Here, the district court provided plenty of reasoning in support of its award. It faithfully applied the Fogerty factors— again, "frivolousness, motivation, objective unreasonableness[,] ... and ... compensation and deterrence," Fogerty, 510 U.S. at 534 n. 19, 114 S.Ct. 1023 (internal quotation marks omitted)—one by one. First it determined that "plaintiffs' copyright infringement claim was a reasonable and viable one" (and therefore neither frivolous nor unreasonable)
For the foregoing reasons, we
First, it says that deterring trial tactics is unrelated to the Copyright Act's purpose: "to encourage the production of original literary, artistic, and musical expression for the good of the public." Fogerty, 510 U.S. at 524, 114 S.Ct. 1023. But it hardly violates that purpose to discourage scorched-earth litigation tactics that tie up intellectual property for years.
Second, T-Peg says the determination of what constitutes excessive litigation tactics is an "unworkable" exercise. The exercise may be unworkable in some cases, but not so here: the district court explained its reasoning, and its explanation makes sense.
Finally, T-Peg says briefly that the fee award was inappropriate because a magistrate judge had represented during settlement negotiations that there would be no such award. T-Peg cites no authority for this proposition, and we decline to mount an expedition in search of any. The argument is waived. See, e.g., Rodriguez v. Municipality of San Juan, 659 F.3d 168, 176 (1st Cir.2011) (citing Town of Norwood v. Fed. Energy Reg. Comm'n, 202 F.3d 392, 404-05 (1st Cir. 2000)).