1- OPINION AND ORDER 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

AUTOMATA PRODUCTIONS, INC.,

 Plaintiff, 

v. 

ROBERT ALAN SPERRY, 

 Defendant. 

Case No.: 3:15-cv-02283-MO

 OPINION AND ORDER 

MOSMAN, J., 

 Plaintiff Automata Productions Inc. (“Automata”) filed this action against Defendant 

Robert Alan Sperry (“Sperry”) for copyright infringement under the Copyright Act. On July 25, 

2016, I entered a default judgment [40]. Automata now seeks attorney fees in the amount of 

$1,241.10 and costs in the amount of $525.00. For the reasons stated below, I GRANT 

Automata’s Motion for Attorney Fees and Costs [41, 42]. 

Legal Standard 

The Copyright Act provides for an award of costs and reasonable attorney’s fees to a 

prevailing party in an action for copyright infringement. 17 U.S.C. § 505 (2014). Awarding fees 

under this provision is a matter of the court’s discretion, but it is to be applied in an evenhanded 

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manner, i.e., “[p]revailing plaintiffs and prevailing defendants are to be treated alike.” Fogerty v. 

Fantasy, Inc., 510 U.S. 517, 534 (1994). 

In determining whether fees should be awarded, the court should consider the following 

factors, which are non-exclusive: “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.” Id. at 535 n. 19 (quoting Lieb v. 

Topstone Indus., Inc., 768 F.2d 151, 156 (3d Cir. 1986)). The Ninth Circuit also 

considers the degree of success obtained in determining both whether attorney fees are 

recoverable and, if so, the amount of such fees. Wall Data Inc. v. Los Angeles Cnty. Sheriff’s 

Dept., 447 F.3d 769, 787 (9th Cir. 2007). 

In determining what amount is “reasonable,” courts first “calculate the ‘lodestar figure’ by 

taking the number of hours reasonably expended on the litigation and multiplying it by a reasonable 

hourly rate.” Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). The court must then 

decide whether to enhance or reduce the figure by evaluating the factors discussed in Kerr v. 

Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975), that were not already considered in 

calculation of the lodestar figure. The Kerr factors include: 

(1) the time and labor required, (2) the novelty and difficulty of the 

questions involved, (3) the skill requisite to perform the legal service 

properly, (4) the preclusion of other employment by the attorney due to 

acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or 

contingent, (7) time limitations imposed by the client or the circumstances, (8) the 

amount involved and the results obtained, (9) the experience, reputation, and 

ability of the attorneys, (10) the ‘undesirability’ of the case, (11) the nature and 

length of the professional relationship with the client, and (12) awards in similar 

cases. 

Kerr, 526 F.2d at 70. Only those factors that are applicable must be addressed. Sapper v. 

Lenco Blade, Inc., 704 F.2d 1069 (9th Cir. 1983). 

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“[T]here is a ‘strong presumption’ that the lodestar figure is reasonable, but that presumption 

may be overcome in those rare circumstances in which the lodestar does not adequately take into 

account a factor that may be properly considered in determining a reasonable fee.” Perdue v. Kenny 

A., 559 U.S. 542, 554 (2010). The district court has “considerable discretion” in determining the 

reasonableness of a fee award. Webb v. Ada County, 195 F.3d 524, 526-27 (9th Cir. 1999). 

Discussion 

I. Entitlement to Attorney Fees 

In my default judgment, I found Defendant was willfully infringing on Automata’s 

exclusive rights under the Copyright Act and, if not enjoined from future infringing activity, 

would continue to cause it harm. I awarded statutory damages and injunctive relief. Automata 

was successful in obtaining the results sought. The action was not frivolous. It was motivated by 

Automata’s desire to protect its copyright interests, and reasonably sought to recover 

compensation for, and deter future, copyright infringement. The relevant factors justify an award 

of attorney fees in this case. 

II. Reasonable Hourly Rate 

A reasonable hourly rate is determined by looking to the “prevailing market rates in the 

relevant community” as well as the skill, experience, and reputation of the lawyer. Blum v. Stenson, 

465 U.S. 886, 895 (1984). The party requesting the fees “has the burden of producing satisfactory 

evidence, in addition to the affidavits of its counsel, that the requested rates are in line with those 

prevailing in the community for similar services of lawyers of reasonably comparable skill and 

reputation.” Jordan v. Multnomah Cnty., 815 F.2d 1258, 1263 (9th Cir. 1987). The best evidence 

of the prevailing rate in Oregon is the periodic Economic Survey conducted by the Oregon State 

Bar. Roberts v. Interstate Distrib. Co., 242 F. Supp. 2d 850, 857 (D. Or. 2002). 

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4- OPINION AND ORDER 

Carl Crowell, Automata’s legal counsel, seeks $312 per hour for time he spent 

working on this case. Mr. Crowell has been a practicing attorney since 1998, and he is admitted 

to practice before numerous courts, as well as the United States Patent and Trademark Office as a 

patent attorney. The Oregon State Bar 2012 Economic Survey reveals the average hourly rate 

billed by attorneys in private practice in Portland, Oregon, is $284, while the average for attorneys 

practicing in the Upper Willamette Valley, which includes Salem, Oregon, is $218. A Portland 

attorney with thirteen to fifteen years of experience bills at an average of $312 per hour. An Upper 

Willamette Valley attorney with similar experience bills at an average of $247 per hour. A 

Portland attorney specializing in business or corporate litigation bills at an average of $311 per 

hour. There is no statistical model for Upper Willamette Valley attorneys specializing in similar 

litigation. 

Mr. Crowell also seeks $175 per hour for the time attorney Drew Taylor, also Automata’s 

legal counsel, spent working on this case. Mr. Taylor was admitted to the Oregon State Bar in 

2013. The Oregon State Bar 2012 Economic Survey reveals a Portland attorney admitted to 

practice in Oregon for up to three years bills at an average rate of $182 per hour. An Upper 

Willamette Valley attorney with similar experience bills at an average of $150 per hour. 

Mr. Crowell has unique expertise in the area of copyright infringement and litigated this 

action in Portland, Oregon. Accordingly, the court finds the hourly billing rate of $312 

requested for Mr. Crowell’s services is reasonable in light of his experience and the billing 

rates of comparable attorneys in the Portland area. Additionally, the court finds the hourly 

billing rate of $175 requested for Mr. Taylor’s services is reasonable in light of his experience 

and the billing rates of comparable attorneys in the Portland area. This finding is consistent with 

previous cases involving Mr. Crowell in this District. See Voltage Pictures, LLC v. Smith, No. 

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5- OPINION AND ORDER 

6:14-cv-01193-AA, Order dated February 18, 2015; Voltage Pictures, LLC v. Lange, No. 6:14-

cv-01224-AC, Default Judgment dated March 4, 2015; Dallas Buyers Club, LLC v. Ivanshentsev, 

No. 3:15-cv-00220-AC, Order dated March 5, 2016. 

III. Hours Reasonably Expended 

The party seeking the award of fees must submit evidence to support the number of 

hours worked. Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000). 

Fee petitions that include inadequate detail or that fail to separate time for individual tasks may 

be totally or partially denied, or apportioned accordingly. Lyon v. Chase Bank USA, N.A., 656 F.3d 

877, 892 (9th Cir. 2011); Dry Creek Landfill, Inc. v. Waste Solutions Grp., Inc., No. CV-04-

3029-ST, 2007 WL 710214, at *5 (D. Or. Mar. 6, 2007). “A district court should exclude from 

the lodestar amount hours that are not reasonably expended because they are ‘excessive, 

redundant, or otherwise unnecessary.’” Van Gerwen, 214 F.3d at 1045 (citation omitted). 

Reasonable time spent in preparing a fee petition is generally recoverable. Guerrero v. Cummings, 

70 F.3d 1111, 1112 (9th Cir. 1995). 

Mr. Crowell represents that he and Mr. Taylor have spent a total of 4.9 hours on this 

matter. The majority of time billed was spent preparing pleadings, including the Amended 

Complaint, Summons, Notice of Default, the Motion for Entry of Default, Motion for Default 

Judgment, and Motion for Costs and Fees. I find that the 4.9 hours spent on this matter are 

reasonable. 

IV.Bill of Costs 

Federal Rule of Civil Procedure 54(d) provides that “[u]nless a federal statute, these rules, 

or a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the 

prevailing party.” FED. R. CIV. P. 54(d)(1) (2014). “Rule 54(d) creates a presumption for 

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6- OPINION AND ORDER 

awarding costs to prevailing parties; the losing party must show why costs should not be awarded.” 

Save Our Valley v. Sound Transit, 335 F.3d 932, 944-45 (9th Cir. 2003). 

The United States Code identifies six categories of recoverable costs: 

(1) Fees of the clerk and marshal; 

(2) Fees for printed or electronically recorded transcripts necessarily obtained for 

use in the case; 

(3) Fees and disbursements for printing and witnesses; 

(4) Fees for exemplification and the costs of making copies of any materials where 

the copies are necessarily obtained for use in the case; 

(5) Docket fees under section 1923 of this title; 

(6) Compensation of court appointed experts, compensation of interpreters, 

and salaries, fees, expenses, and costs of special interpretation services under 

section 1828 of this title. 

28 U.S.C. § 1920 (2014). 

Plaintiff seeks reimbursement for the initial filing fee of $400; a fee of $70 paid to 

Comcast for subpoenaed records in accordance with the Court’s Order; and a $55 service fee of 

the FRCP 45 subpoena. All of these costs are reasonable and recoverable. 

Conclusion 

For the foregoing reasons, I GRANT Automata’s Motion for Attorney Fees and Costs 

[41, 42] and award attorney fees in the amount of $1,241.10 and costs in the amount of $525.00. 

Dated this _____ day of September, 2016. 

__________________________

Chief United States District Judge 

Michael W. Mosman 

16

/s/ Michael W. Mosman

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