In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-4158

WOODHAVEN HOMES & REALTY, INC.,

Plaintiff-Appellee,

v.

BARBARA HOTZ and DALE HOTZ,

Defendants-Appellees,

v.

DOUGLAS E. ROBBINS and

ROBBINS ELECTRIC, INC.,

Defendants-Appellants.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 01-C-778—Rudolph T. Randa, Chief Judge.

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ARGUED NOVEMBER 12, 2004—DECIDED JANUARY 28, 2005

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Before BAUER, MANION, and EVANS, Circuit Judges.

EVANS, Circuit Judge. This case, which began as a minor

copyright infringement dispute, has mushroomed into a

protracted fight over, what else, attorney fees. Woodhaven
2 No. 03-4158

1 The complaint also named as a defendant Douglas E. Robbins.

We will refer to both defendants collectively as “Robbins.”

Homes & Realty, Inc., sued a contractor, Robbins Electric,

Inc.,1

 and homeowners Dale and Barbara Hotz, claiming

they used Woodhaven’s blueprints without permission to

build the Hotzes’ home. After Robbins prevailed on summary

judgment, it moved for an award of costs and attorney fees

under the Copyright Act, specifically 17 U.S.C. § 505. The

district court denied the request, prompting this appeal.

First, a brief review of the facts. Woodhaven builds and

sells homes. In 1998, it placed a model home in the “Parade

of Homes,” a promotional undertaking sponsored by the

Metropolitan Builders Association of Greater Milwaukee.

The Hotzes toured the home and then paid Woodhaven

$1500 for customized blueprints. There was no written contract between the two. The Hotzes later took these plans to

Robbins, who in turn built the Hotzes’ home in Mukwonago,

Wisconsin, outside the city of Milwaukee. In a written construction contract, the Hotzes warranted that they owned

the plans and agreed to hold Robbins harmless “in any and

all litigation arising out of copyright claims.”

After catching wind of the construction, Woodhaven took

Robbins and the Hotzes to court for copyright infringement

and unjust enrichment. Robbins responded by filing a counterclaim to declare invalid Woodhaven’s purported copyright.

It also filed a cross-claim against the Hotzes for indemnification of its litigation expenses. In February of 2003, the

district court entered summary judgment for Robbins regarding infringement. In June of 2003, the court entered

summary judgment in favor of the Hotzes on Robbins’ crossclaim, concluding that the hold-harmless agreement covered

only damages, not attorney fees. Robbins then moved to

recover attorney fees and costs from Woodhaven under 17
No. 03-4158 3

U.S.C. § 505, a move the district court rejected. Woodhaven

and the Hotzes eventually settled.

The primary issue on appeal is Robbins’ efforts to recover

its attorney fees from Woodhaven under § 505. The Copyright Act allows the award of reasonable attorney fees to a

prevailing party. 17 U.S.C. § 505. The district court denied

Robbins’ request in light of the factors outlined by the

Supreme Court in Fogerty v. Fantasy, Inc., 510 U.S. 517, 534

(1994). These nonexclusive factors include “frivolousness,

motivation, objective unreasonableness (both in the factual

and in the legal components of the case) and the need in

particular circumstances to advance consideration of

compensation and deterrence.” Id. at 534 n.19. The court

concluded that Robbins should not be awarded fees because

much of the work performed by its lawyers related to

various defenses that were ultimately never addressed or

resolved.

But in the time period since the district court’s decision,

we issued an opinion clarifying the Fogerty standard. In

Assessment Technologies of WI, LLC v. Wiredata, Inc., 361

F.3d 434, 436 (7th Cir. 2004), we held that prevailing

defendants in copyright cases, like Robbins, are presumptively entitled (and strongly so) to recover attorney fees:

[T]he prevailing party in a copyright case in which the

monetary stakes are small should have a presumptive

entitlement to an award of attorneys’ fees. When the prevailing party is the defendant, who by definition receives

not a small award but no award, the presumption in

favor of awarding fees is very strong. For without the

prospect of such an award, the party might be forced into a nuisance settlement or deterred all together from

exercising his rights.

Id. at 437 (internal quotation and citations omitted).

Robbins did prevail, but its victory was costly—it incurred

over $220,000 in legal fees. In this case, like Assessment
4 No. 03-4158

Technologies, awarding attorney fees is appropriate because

Robbins “could not obtain an award of damages from which

to pay his lawyer no matter how costly it was for [it] to

defend against the suit.” 361 F.3d at 437.

The district court evaluated the fees issue without the

benefit of Assessment Technologies. Accordingly, we remand

the case with instructions to evaluate Robbins’ request in

light of Assessment Technologies. While we do not pass judgment on what the award should be, § 505 demands that it

be “reasonable.” And the amount Robbins seeks, over

$220,000, seems quite excessive. This was not a high stakes

case, as Woodhaven claimed only $55,000 in damages. Indeed, Robbins’ fees nearly surpassed the value of the Hotzes’

home.

Robbins raises two other issues. First, it argues that the

district court erred by failing to grant it relief under 17

U.S.C. § 1325. That provision allows a defendant in a copyright action to recover up to $10,000 from a plaintiff who

brings an action “knowing that registration . . . was obtained by a false or fraudulent representation . . . .” But

Robbins failed to conclusively establish that Woodhaven

engaged in fraudulent behavior. The court dismissed

Woodhaven’s complaint for failing to prove infringement. It

never made a finding that Woodhaven engaged in fraud.

Lastly, Robbins asserts that the district court erred by

entering summary judgment for the Hotzes on its claim for

indemnification. But, as the court correctly noted, the holdharmless agreement made no mention of attorney fees,

dooming Robbins’ claim. See Hunzinger Constr. Co. v.

Granite Res. Corp., 538 N.W.2d 804, 809 (Wis. App. 1995)

(Wisconsin courts will not construe an obligation to pay

attorney fees unless contract language “clearly and unambiguously so provides”).

Accordingly, we AFFIRM in part, VACATE in part, and

REMAND the case for further proceedings on Robbins’ re-
No. 03-4158 5

quest for attorney fees and costs under 17 U.S.C. § 505. No

costs are awarded to either party on this appeal.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-28-05