Court Awards Statutory Copyright Infringement Damages of $3,000 Per Infringement

In a May 16, 2014 ruling, Magistrate Judge James C. Francis IV issued a Report and Recommendation after an inquest awarding statutory damages of $3,000 per photograph for six infringing pictures of Lindsay Lohan that the defendant published on its website.  Judge Francis found that this amount of damages "represents three time the amount of the licensing fee for each image," making the award "clearly within the lawful range, and, indeed, near the lower end."  The Court also awarded attorneys' fees of $6,732.50, approving hourly rates for two partners of $525 and $450, but reducing a third year associate's rate from $400 to $200.

Fee Application under Copyright Act for Frivolous Appeal Must Be Directed to Appellate Court

In a May 13, 2014 ruling, Judge J. Paul Oetken ruled that a motion for fees under the Copyright Act incurred in connection with the defendant's unsuccessful appeal must be made in the Court of Appeals.  Accordingly, Judge Oetken denied the plaintiff's request for leave to file the motion for fees before the district court.

Court Awards Damages and Attorneys' Fees for Wrongful Seizure in Couterfeiting Case

In a February 28, 2014 ruling, Magistrate Judge Frank Maas issued a Report and Recommendation recommending that the Court award defendant Top Quality Food Market, LLC and the other defendants $22,535 in attorneys’ fees and damages for the wrongful ex parte seizure of allegedly counterfeit goods. Plaintiff Prince of Peace Enterprises, Inc. obtained the seizure order, which Judge Howell later vacated. The defendants then asserted a counterclaim seeking damages for the wrongful seizure. After the plaintiff defaulted in responding to the defendants’ motion to dismiss, Judge Howell granted the motion and ordered that the defendants’ counterclaim be decided in their favor. The Court then referred the matter to Judge Maas for an inquest on damages arising from the unwarranted seizure.

Judge Maas began his analysis by noting that because the plaintiff never answered the counterclaim, “the well-pleaded factual allegations therein must be accepted as true,” but the plaintiffs “nevertheless still must submit proof sufficient to enable this Court to determine their losses since a default ‘is not an admission of damages.’” Judge Maas also wrote that the amount of damages recoverable is governed by 15 U.S.C. § 1116(d)(11), which provides that a victim of a wrongful seizure is entitled to recover “lost profits, cost of materials, loss of good will, and punitive damages in instances where the seizure was sought in bad faith, and unless the court finds extenuating circumstances, to recover a reasonable attorneys’ fee.”

The plaintiffs sought $192 for seized goods that were never returned, $2,000 for goods that spoiled while the seizure was in effect, $2,064 in wages, $4,577.60 in lost profits and $29,721.95 in attorneys’ fees. Judge Maas awarded the $192 for the seized goods even though they were inadequately documented because the amount is de minimis. The Court examined the documentation with regard to the other non-attorneys’ fees items of damages, and concluded that the defendants had not carried their burden of showing them with reasonable certainty.

Court Finds Trademark and Trade Dress Infringement; Awards Treble Damages and Attorneys' Fees

In a January 6, 2014 ruling, Judge Harold Baer, Jr. entered judgment in favor of the plaintiffs after a four-day bench trial on the plaintiffs’ trademark and trade dress infringement claim over plaintiff Audemars Piguet Holding S.A.’s well-known octagonal watch design.  The plaintiffs contended that two models of the defendants’ watches infringed their trademarks and trade dress in their “Red Oak” line of watches.  In finding in favor of the plaintiffs, Judge Baer found that “the similarities between these watches remain striking.”

In considering the trade dress claim, the Court wrote that a “plaintiff asserting product design trade dress infringement must prove distinctiveness by showing that ‘“in the minds of the public, the primary significance of [the mark] is to identify the source of the product rather than the product itself” (what is known as ‘acquired distinctiveness’ or ‘secondary meaning’).’”  Judge Baer added that to “determine whether a secondary meaning has attached, the court considers six factors:  ‘(1) advertising expenditures, (2) consumer studies linking the mark to a source, (3) unsolicited media coverage of the product, (4) sales success, (5) attempts to plagiarize the mark, and (6) length and exclusivity of the mark’s use.’”  The Court considered each factor in turn, and found that all but one of them favored the plaintiffs.

Having found that the plaintiffs’ trade dress has secondary meaning, the Court conducted a similar analysis to determine whether there was a likelihood of confusion between the plaintiffs’ and the defendants’ watches, using the well-known eight factor Polaroid test.  Finding that four of the factors favored the plaintiffs, the Court concluded that the defendants’ “use of the allegedly infringing designs is likely to cause customer confusion.”

Court Denies Attorneys' Fees to Prevailing Copyright Infringement Defendant

In a December 20, 2013 ruling, Judge Donald C. Pogue, sitting by designation, declined to award attorneys’ fees under 17 U.S.C. § 505 to the prevailing defendant, Supap Kirtsaeng, in plaintiff John Wiley & Sons, Inc.’s copyright infringement action.  The Court ruled that because “Plaintiff’s claim was not unreasonable or frivolous, and because no other equitable consideration weighs in favor of Defendant’s request, . . . Defendant’s motion is denied.”  The case had been returned to the district court after the Supreme Court’s reversal of the Court’s previous ruling finding the defendant liable for copyright infringement.  The defendant imported lawfully obtained foreign editions of the plaintiff’s text books into the United States.  The Supreme Court ruled that that activity was protected by the “first sale doctrine.”

The Court began its discussion by noting that an award of fees is not mandatory under § 505, but should instead be guided by the Court’s “equitable discretion.”  Judge Pogue wrote that although there are a number of factors to consider in awarding fees, the most significant one under Second Circuit precedent is the “objective reasonableness” of the claim; “’a court should not award attorneys’ fees where the case is novel or close because such a litigation clarifies the boundaries of copyright law.’”

Judge Pogue found that fees were unwarranted because “neither the factual allegations nor the legal theory on which Wiley’s claim was based were objectively unreasonable.  Wiley’s claim – which persuaded this Court, the Court of Appeals, and three Justices of the Supreme Court – represented the legitimate attempt of a copyright holder to enforce its rights against the unauthorized importation to low-priced, foreign-made copies of its copyrighted works.”  The Court also noted that although attorneys’ fees can still be awarded where the plaintiff’s claim is objectively reasonable – such as where a claim is frivolous, brought for an improper purpose or where “considerations of compensation an deterrence” are furthered – none of these factors is present in this case.  Judge Pogue thus denied the defendant’s motion for fees.

Court Finds Patent Infringement Action Moot Upon Filing of Covenant Not to Sue

In a December 19, 2013 ruling, Judge Coleen McMahon dismissed with prejudice plaintiff Commercial Recovery Corporation’s patent infringement claim against Bilateral Credit Corp., LLC upon Commercial Recovery’s filing of a covenant not to sue, and dismissed as moot Bilateral’s counterclaims of non-infringement and invalidity.  The covenant not to sue filed by Commercial Recovery “is unconditional and irrevocable, and reaches beyond Bilateral to protect Bilateral’s suppliers, distributors, customers, and partners.”  Judge McMahon found it “’hard to imagine a scenario’ under which Bilateral could infringe the [patent-in-suit] and yet not fall under [Commercial Recovery’s] covenant.”

Bilateral argued that the covenant was ineffective because Commercial Recovery was in receivership and held title to the patent only for purposes of the suit against Bilateral, so Bilateral remained exposed to claims from successors-in-title.  Judge McMahon rejected this argument, ruling that under 35 U.S.C. § 281, the term “patentee” includes “’not only the patentee to whom the patent was issued but also the successors in title to the patentee,’” so any successor-in-title would be bound by the covenant.

Bilateral also argued that the covenant was not necessarily broad enough to cover Bilateral’s future activities.  The Court held, however, that given the breadth of the covenant not to sue, it was incumbent upon Bilateral to proffer evidence of sufficiently concrete plans to engage in conduct not covered by the covenant.  Judge McMahon found that Bilateral had failed to provide any such evidence.

The Court also rejected Bilateral’s request to condition Commercial Recovery’s request for a voluntary dismissal with prejudice on the payment of Bilateral’s attorneys’ fees.  Judge McMahon noted that courts frequently condition requests for dismissal without prejudice on the payment of fees because plaintiffs can, and frequently do, refile such cases leading to duplicative expenses for the defendants, but that fees are rarely awarded for a dismissal with prejudice because there is no risk of duplicative work.  The Court also rejected Bilateral’s request for fees under 35 U.S.C. § 285 and 28 U.S.C. § 1927, finding no evidence that Commercial Recovery had engaged in objectively baseless litigation in bad faith.

Court Enhances Damages But Declines to Award Fees in Patent Infringement Action

In a December 18, 2013 ruling, Judge Samuel Conti denied the defendants’ motion for a new trial or for judgment as a matter of law following a jury verdict of patent infringement against them, and granted in part the plaintiff’s motion for enhanced damages and attorneys’ fees (in light of the jury’s finding of willful infringement) and for a permanent injunction.

With respect to the new trial motion, Judge Conti rejected the two individual defendants’ challenge to a jury instruction that they contended improperly allowed the jury to impute infringement to them in their individual capacities.  Since the jury found that the individuals are general partners in a partnership that was also found liable for infringement, the individuals could be held liable under general partnership law, mooting the issue about the jury instruction.  The Court also rejected the defendants’ contention that the plaintiff’s expert’s use of demonstrative exhibits that were not disclosed as part of the expert report warranted a new trial, noting that the exhibits merely illustrated points that were included in the report, and the exhibits were not admitted into evidence. 

Judge Conti analyzed the request for enhanced damages under the nine factors set out in Read Corp. v. Portec, Inc., 970 F.2d 816, 826 (Fed. Cir. 1992).  The Court found that the first three factors – whether the infringer deliberately copied the ideas or design of another, whether the infringer acted with knowledge of the patent and formed a good faith belief of non-infringement or invalidity, and whether the infringer engaged in litigation misconduct – all strongly favored the enhancement of damages.  Judge Conti found that the remaining factors did not mitigate against enhancing damages, and accordingly trebled the jury’s $300,000 damages award.  The Court declined to award attorneys’ fees, though, finding that the defendants’ conduct was not egregious, and that “some of the positions advanced at trial by Defendants had merit.”  In a later January 8, 2014 ruling, Judge Conti awarded prejudgment interest at the prime rate (3.25%), rejecting the plaintiff's request to use the 9% rate specified in the New York CPLR.  The Court awarded prejudgment interest only on the $300,000 damages award, not on the enhanced. amount.

Court Denies Attorneys' Fees to Prevailing Defendants in Patent Infringement Action

In a December 17, 2013 ruling, Judge P. Kevin Castel denied attorneys' fees to defendants Facebook, Inc. and Google, Inc. after they successfully secured summary judgment dismissing plaintiff Wireless Ink Corporation's patent infringement action. Noting that a court may award attorneys' fees under 35 U.S.C. § 285 in an exceptional case, Judge Castel wrote that as "a threshold matter, a court must first determine whether the party seeking attorney fees has proved by clear and convincing evidence that the case is exceptional."

 Google and Facebook argued that the case is exceptional, and became objectively baseless and pursued in bad faith after the Court's claim construction ruling rendered it impossible for Wireless Ink to prevail on its infringement claims. Wireless Ink contended that it opposed summary judgment based on its expert's opinion of infringement that was rendered after the Court's claim construction. In rejecting the defendants' argument, Judge Castel first noted that a "loss on summary judgment does not . . . lead to a presumption that a claim was objectively baseless," and accepted Wireless Ink's contention that its reliance on its expert witness was reasonable. The Court concluded that because "Facebook and Google have not shown, by clear and convincing evidence, that [Wireless Ink's expert's] opinions were objectively baseless, a finding that Wireless Ink's positions on infringement were objectively baseless is not warranted.

Court Denies Attorneys' Fees to Successful Defendant in Copyright Infringement Claim

In a November 12, 2013 ruling, Judge John G. Koetl denied the parties' cross-motions for attorneys' fees after the dismissal of plaintiff Overseas Direct Import Co.'s copyright infringement claim against defendant Family Dollar Stores Inc. and another.  Before the trial of the copyright infringement claim, Family Dollar Stores made an offer of judgment under Rule 68, which Overseas Direct rejected.  The jury, however, returned a verdict for Family Dollar Stores and Overseas Direct took nothing.  Family Dollar Stores moved for fees under the Copyright Act, 17 U.S.C. § 505 and Rule 68.  Overseas Direct cross-moved for its fees in defending the motion.

The Court explained that a plaintiff that recovers less than an offer of judgment can be liable for costs under Rule 68, and that those costs can include attorneys' fees where the underlying statute allows them, as the Copyright Act does here.  Family Dollar Stores argued that the verdict of $0 for Overseas Direct was less than the offer of judgment, so it is entitled to costs.  Judge Koetl ruled that "this argument is squarely foreclosed by the Supreme Court's holding in Delta Air Lines, Inc. v. August that the costs provision of Rule 68 is 'simply inapplicable' when the defendant has 'obtained the judgment.'"

Court Grants Copyright Ownership to the Plaintiff and Awards Attorneys' Fees

In a September 30, 2013 ruling, Judge Richard J. Sullivan granted summary judgment and attorneys' fees to plaintiff 16 Casa Duse, LLC in its copyright declaratory judgment action against defendant Alex Merkin over the ownership of the copyright in the short film entitled "Heads Up."  The plaintiff purchased all rights to the screenplay for the film, and then assembled a cast and crew.  Every member of the cast and crew, except Merkin, the director, signed agreements specifically assigning all intellectual property rights to the plaintiff.  After a director's cut of the film had been completed, a dispute about copyright ownership developed between the plaintiff and Merkin.  When the parties' relationship completely broke down, Merkin obtained a copyright registration in the director's cut of the film, listing his authorship as "direction/director."  Plaintiff commenced this action, and its amended complaint asserted, among other claims, declaratory judgments that the plaintiff is not liable for copyright infringement and that Merkin has no ownership in any copyright to the film, and to invalidate Merkin's registration.  Merkin counterclaimed with various declaratory judgment claims relating to the copyright issues.  Both parties moved for summary judgment.

Judge Sullivan easily disposed of the plaintiff's claim of non-liability for copyright infringement, ruling that the plaintiff was -- at the very least -- a joint author of the work, so the plaintiff could not "be liable for copyright infringement because co-authors each own an undivided interest in the work." 

The Court next considered whether the plaintiff was the sole or co-author of the work under the Second Circuit's two-pronged test which looks at whether "'each of the putative co-authors (1) made independently copyrightable contributions to the work; and (2) fully intended to be co-authors.'"  Regarding the first prong, Judge Sullivan found that the plaintiff did "not contest that Merkin made independently copyrightable contributions to the Film."  Judge Sullivan, however, strongly found against Merkin on the second prong, finding that "the record uniformly establishes that Plaintiff, through its principal, . . . never intended to share authorship of the film with Merkin or anyone else." 

The Court concluded the plaintiff "is entitled to a declaratory judgment that Merkin holds no copyright ownership interest in the Film."  Judge Sullivan rejected Merkin's counterclaims based largely on the conclusion that Merkin has no copyright interest in the film, and likewise invalidated Merkin's registration in the director's cut to the film that Merkin had obtained.

Attorneys' Fees Awarded to Prevailing Defendant in Copyright Infringment Action

In a September 10, 2013 ruling, Judge Paul G. Gardephe granted defendant Hilton Worldwide, Inc.'s motion for attorneys' fees after it secured summary judgment against plaintiff Aqua Creations USA, Inc.'s copyright infringement claims.  Aqua Creations had sought copyright registrations on its lighting designs.  The Copyright Office denied registration, finding that the lighting designs were useful articles that did not contain any creative authorship separable from the articles themselves.  After the Copyright Office denied reconsideration, Aqua Creations started the action against Hilton, alleging copyright infringement of its unregistered lighting designs.  Hilton sought a pre-motion conference to dismiss the complaint because it failed "'to identify any separable, non-functional, artistic elements of the designs.'"  At the conference, the Court gave Aqua Creations leave to file another amended complaint.  That amended complaint, however, suffered from the same defect, and Judge Gardephe granted Hilton's motion to dismiss.  Aqua Creations appealed, and the Second Circuit affirmed, relying on the same cases and adopting the same reasoning as Judge Gardephe had in dismissing the amended complaint.

Hilton then sought attorneys' fees, for the cost of the appeal only, under the Copyright Act provision giving the Court discretion to award fees to the prevailing party, 17 U.S.C. § 505.  Judge Gardephe found that "[b]y the time Aqua filed its appeal, it had been alerted on at least five separate occasions that its copyright claims were defective, because it had not demonstrated that the designs in its light fixtures were separable from the utilitarian and functional aspects of these lamps" -- twice by the Copyright Office, once by Hilton in its letter asking for a pre-motion conference, and twice by the Court in considering the adequacy of Aqua Creations' complaints.  The Court thus ruled that "[u]nder these circumstances, this Court cannot find that Aqua's actions in prosecuting the appeal were objectively reasonable."  Judge Gardephe awarded fees, but in a reduced amount from that sought by Hilton.

Court Rules in Favor of Manufacturer Over Distributor in Lanham Act Dispute

In a September 10, 2013 ruling after a bench trial, Judge Marvin E. Aspen ruled in favor of plaintiff Excell Consumer Products Ltd. in its Lanham Act and state law claims over the the "Smartcandle" mark and related logos.  Defendants Structural Integrity Property Services, LLC and Smart Candle LLC had been Excell's distributor of battery-operated candles sold under the "Smartcandle" marks.  Excell had originally licensed the marks from a party referred to as SCK.  After the distribution arrangement between Excell and Structural ended, Structural asserted ownership of the marks, and sought to register them with the USPTO.  Excell asserted Lanham Act and state law unfair competition claims against Structural, which counterclaimed with like causes of action.

Judge Aspen found that since the parties essentially asserted mirror Lanham Act claims against each other, they had effectively conceded all the elements of the claims, so the dispute became one of ownership of the marks at issue. Excell argued three ways through which it had acquired the marks at issue:  (1) as a licensee from SCK; (2) as a purchaser from SCK under another agreement; and (3) as the acquirer of the marks after SCK abandoned them.  The Court rejected the first two grounds, but found in Excell's favor on the abandonment issue.

Judge Aspen noted that a mark is abandoned if the owner "'discontinues use with the intent not to resume such use in the foreseeable future,'" and that there is presumptive abandonment after three years of non-use.  Also according to the Court, "[o]nce abandoned, 'a mark returns to the public domain and may, in principle, be appropriated for use by other actors in the marketplace, in accordance with the basic rules of trademark priority.'"  Judge Aspen ruled that the marks had been abandoned because SCK was dissolved in 2007, "and there is no evidence that it ever resumed operations." 

Attorneys' Fees Denied in Trademark Infringement Action Despite Bad Faith

In an August 12, 2013 ruling, Judge Colleen McMahon denied defendant Conduit Limited's post-trial motions for judgment as a matter of law and plaintiff MyPlaycity, Inc.'s ("MPC") motion for attorneys' fees in what the Court characterized as a "long, tortuous" litigation.  Before trial, Judge McMahon had entered summary judgment of liability in favor of MPC on its Lanham Act claims, common law trademark infringement and unfair competition claims, and unjust enrichment claim.  The Court "also concluded that Conduit had acted in bad faith as a matter of law."  After a damages trial, the jury awarded $500,000 in disgorgement of Conduit's profits.  Despite the clear wording of 15 U.S.C. § 1117(a) that the plaintiff need only prove the defendant's sales in seeking an award of profits and the burden is on the defendant to prove any offsets, Conduit argued that "MPC bore the burden of distinguishing between Conduit's profits flowing from its infringing activity and from its non-infringing uses of MPC's trademark."  The defendant's argument was based principally on Burndy Corp. v. Teledyne Indus., Inc., 748 F.2d 767 (2d Cir. 1984).  Judge McMahon considered that case and the cases discussing it, and concluded that "Conduit is wrong to assert that Burndy (or any other of the cases it cites) required MPC to do more than demonstrate the gross amount of Conduit's . . . profits from activity related to" MPC's use of the mark.  It then became Conduit's burden under Section 35(a) of the Lanham Act to prove that this entire amount was to unjust enrichment."  The Court considered, and rejected, a variety of other attacks on the damages award, and ultimately upheld it in its entirety.

Prevailing Defendant Denied Award of Attorneys' Fees in Lanham Act Claim

In an August 7, 2013 ruling, Judge Jed S. Rakoff denied the motion of defendants House of Cheatham Inc. and Robert Bell for attorneys' fees under the Lanham Act after the defendants prevailed on the trademark infringement, false designation of origin, unfair competition and state dilution claims brought by the plaintiff, Akiro LLC.  The Court first noted that Second Circuit case law "'allows recovery of a reasonable attorney's fee only on evidence of fraud or bad faith,'"  although some cases have allowed fees where the suit was a "'competitive ploy'" or where the suit is initiated with "'ulterior business motives.'"  In support of their motion, "defendants largely focus[ed] on such matters of the timing of Akiro's decision to commence this action, particular tactical decisions, and the expense of defendants' defense."  The Court, however, ruled that "the proper inquiry centers on whether or not Akiro 'had a credible, good faith basis on which to rest its Lanham Act claims."  After considering the (albeit limited) evidence presented at trial, Judge Rakoff held that "the Court cannot conclude that Akiro lacked a good-faith basis for its claims," and denied an award of fees.

Statutory Damages Awareded and Attorneys' Fees Denied in Copyright Action

In a July 30, 2013 ruling, Judge Paul G. Gardephe adopted in full the Report and Recommendation of Magistrate Judge Freeman awarding plaintiff Rami Shamir $5,000 in statutory copyright damages and denying plaintiff's attorneys' fees.  Shamir had sued a number of related defendants alleging that they had infringed the copyright in his novel "Train to Pokipse" by selling "advanced reading copies" of the book.  The defendants defaulted and largely refused to participate in the proceedings in any meaningful way.  Judge Freeman held an inquest, and in response to Shamir's request for $150,000 in statutory damages, awarded $5,000, noting that the case "'presents a situation of willful infringement, with modes profits to the infringers, at best, and no demonstrable, actual loss to Plaintiff.'"  Judge Freeman declined to award attorneys' fees because ""Plaintiff's unsworn, unauthenticated submission, and non-contemporaneous records, do not substantiate Plaintiff's requested award."  Judge Gardephe, applying a "clear error" standard, ruled that the $5,000 statutory damages award was proper, particularly in light of the defendants' profit of at most $1,200 for the infringing copies.  The Court likewise found the request for attorneys' fees to be insufficiently substantiated.

Judge Gardephe Denies Attorneys' Fees Award

In a July 11, 2013 ruling, Judge Paul G. Gardephe denied the defendant The Bon-Ton Stores, Inc.'s motion for attorneys' fees after its successful motion to dismiss plaintiff Klauber Brothers, Inc.'s breach of contract, and copyright and trademark infringement claims. For the breach of contract claim, Judge Gardephe ruled that an attorneys' fee award is available under the Court's inherent powers where a party has "'acted in bad faith, vexatiously, wantonly, or for oppressive reasons.'"  Finding that Klauber's conduct did not meet that standard, the Court declined to award fees on the breach of contract claim.  Judge Gardephe denied the fee claim under the Copyright Act, holding that "[w]here, as here, a copyright claim is not frivolous or objectively unreasonable, the goals of 'compensation and deterrence' . . . are not furthered in granting an award of attorneys' fees."  Lastly, regarding the trademark infringement claim, the Court noted that attorneys' fees are only available in an exceptional case, and held that while Klauber's theory of standing to assert a trademark infringement claim "was incorrect, there is no evidence that Klauber's Lanham Act claim was brought in bad faith, or as a 'competitive ploy.'"  Judge Gardephe accordingly denied the motion for fees in its entirety.

Attorneys' Fees Denied After Dismissal for Lack of Personal Jurisdiction in Copyright Infringement Case

In a June 27, 2013 ruling, Judge Ronnie Abrams denied defendant American Buddha's motion for attorneys' fees after it secured dismissal of Penguin Group (USA), Inc.'s copyright infringement claim against it for lack of personal jurisdiction. Judge Abrams first noted that the "Second Circuit has not directly addressed whether the dismissal of claims against a defendant for lack of personal jurisdiction renders it a 'prevailing party' for purposes of § 505," the provision of the Copyright Act addressing an award of attorneys' fees. The Court did not have to reach that issue, though, because Judge Abrams held that "even if Defendant is deemed a prevailing party, an award of attorney's fees is not warranted in this case." In declining to find Penguin's allegation of personal jurisdiction objectively unreasonable (so as to support an award of fees), Judge Abrams found:

Motion for Reconsideration on Attorneys' Fees Denied

In a June 4, 2013 ruling, Judge Richard Sullivan denied reconsideration of a $10,000 award of attorneys’ fees against a pro se copyright plaintiff.  The plaintiff had argued that reconsideration was warranted because the Court incorrectly applied the Visual Artists Rights Act (VARA) to the works at issue, and that the Court had erred in concluding that the plaintiff had intentionally manipulated certain images to make them appear more similar to images made by the defendant.  In denying reconsideration, Judge Sullivan noted “the upshot of the Court’s analysis of VARA was to reject one of Defendants’ arguments in favor of fees,” and that “there can be no question that Plaintiff did intentionally manipulate images to enhance alleged similarities between her work” and that of the defendant.