Law360, New York (August 17, 2016, 5:42 PM ET) — A California federal judge Tuesday approved a $4.6 million fee request for attorneys who secured a $14 million settlement of a copyright class action placing “Happy Birthday To You” in the public domain, saying the results achieved and other factors warranted the award.
Over the objections of Warner/Chappell Music Inc., U.S. District Judge George H. King supported the award of 33 percent of the $14 million settlement. The $4.6 million sum factored in a “multiplier” to provide the prevailing attorneys with more than the stated fees and costs involved in litigating the matter.
“Given the unusually positive results achieved by the settlement, the highly complex nature of the action, the risk class counsel faced by taking this case on a contingency-fee basis, and the impressive skill and effort of counsel,” the multiplier of 1.2 was justified, Judge King wrote in his 20-page order.
The class action was brought in 2013 by Good Morning to You Productions Corp., a company working on a documentary about the song’s origins. Warner/Chappell had claimed exclusive ownership over the song and charged millions in licensing fees from films and televisions shows that used it.
Judge King, however, ruled in September that the music publishing company doesn’t own a valid copyright to the song’s lyrics after concluding there was no proof that the song’s original authors, sisters Mildred and Patty Hill, ever really handed over the rights to the song to the company’s predecessor entities. The $14 million settlement aims to repay thousands who had licensed “Happy Birthday” from Warner/Chappell.
Class counsel requested more than the Ninth Circuit Court of Appeal’s 25 percent “benchmark” in common fund cases, arguing that the $4.62 million in proposed fees is just 15.8 percent of the total value of settlement when accounting not only for the $14 million in compensation for past royalties but also $15 million in savings of future payments over the remaining 14 years of copyright Warner/Chappell was set to hold over the iconic song.
The judge agreed, saying the settlement was “undoubtedly” worth more than $14 million.
“While we may not be able to precisely quantify the nonmonetary benefits that will flow from the settlement, those benefits are substantial,” Judge King wrote.
With regard to the counsel’s skill, the judge agreed with Warner/Chappell that high-caliber lawyers are expected in complex class actions, but called this particular case “not typical.”
“Plaintiffs challenged Defendants’ long-running copyright claim to one of the best-known songs in history, largely prevailed on summary judgment, and achieved a highly favorable settlement,” Judge King wrote. “Not all, or perhaps even most, plaintiffs’ class counsel could have litigated this case as successfully as did class counsel against such a fierce and exceptionally accomplished opponent.”
The judge also rejected Warner/Chappell’s attempt to minimize the novelty and complexity of the action, saying the case presented “highly complex issues of proof.”
“Plaintiffs embraced the challenge of contesting an alleged copyright to song lyrics written at the turn of the Twentieth Century. No relevant witnesses are alive today. Nearly all of the documentary evidence in the case is over sixty years old,” the judge wrote, adding that some pertinent documents were never found. “Yet Plaintiffs successfully worked with this aged, lengthy, and imperfect record to piece together their case and to prove that defendants did not own a copyright to the Happy Birthday lyrics.”
Warner/Chappell also challenged class counsel’s hourly rates — including an $820 per hour rate for lead counsel and Wolf Haldenstein partner Mark Rifkin — arguing evidence wasn’t provided showing the rates are reasonable for the Los Angeles area.
Judge King said although some of the hourly rates were “relatively high,” they were within the rates charged in the district by attorneys with comparable skill and experience.
Warner/Chappell also argued to the court that the overall billing time for plaintiffs’ counsel should be reduced due to “block billing” that didn’t itemize specific tasks, vague billing entries, overlap among the plaintiffs’ four firms and fee requests for non-compensable tasks such as time spent responding to the media.
While the judge found some billed hours concerning, in the end he awarded the $4.62 million requested by the four firms that successfully represented a class led by the documentary film company — Wolf Haldenstein Adler Freeman & Herz, Hunt Ortmann Palffy Nieves Darling & Mah Inc., Donahue Fitzgerald LLP and Glancy Prongay & Murray LLP.
Rifkin told Law360 on Wednesday that the plaintiffs’ legal team is “extremely pleased” with the court’s decision.
“The victory in the case was a great team effort that was possible only through much hard work by a very dedicated group of professionals. I am gratified that Judge King recognized the legal team’s skill and dedication to this case,” Rifkin wrote in an email.
Judge King signed off on the deal between the parties that officially places “Happy Birthday” into the public domain in June.
Counsel for Warner/Chappell didn’t immediately respond to a request for comment Wednesday.
The plaintiffs are represented by Francis M. Gregorek, Betsy C. Manifold, Rachele R. Rickert, Marisa C. Livesay, Janine Pollack, Beth A. Landes and Mark Rifkin of Wolf Haldenstein Adler Freeman & Herz LLP, Alison C. Gibbs, Omel A. Nieves and Kathlynn E. Smith of Hunt Ortmann Palffy Nieves Darling & Mah Inc., William R. Hill, Andrew S. MacKay and Daniel J. Schacht of Donahue Fitzgerald LLP, and Lionel Z. Glancy and Marc L. Godino of Glancy Prongay & Murray LLP.
Warner/Chappell is represented by Glenn D. Pomerantz, Kelly M. Klaus, Melinda E. LeMoine and Adam I. Kaplan of Munger Tolles & Olson LLP.
The case is Good Morning To You Productions Corp. v. Warner Chappell Music Inc. et al., case number 2:13-cv-04460, in the U.S. District Court for the Central District of California.
–Additional reporting by Suevon Lee, Bill Donahue and Kat Greene. Editing by Emily Kokoll.