RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0090p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

LEONARD JONES and JAMES E. WHITE,

 Plaintiffs-Appellants (07-1051),

Plaintiffs-Appellees (07-1566),

v.

MARY J. BLIGE; ASIAH LEWIS; LUCHANA N.

LODGE; UNIVERSAL-MCA MUSIC

PUBLISHING, INC., a Division of Universal

Studios; UNIVERSAL MUSIC GROUP, INC., in

its own right, Successor in Interest, MCA

Records, Incorporated.; ANDRE ROMELL

YOUNG; BRUCE MILLER; CAMARA KAMBON;

MELVIN BRADFORD; MICHAEL ELIZONDO;

and JOHN DOE, 1-10; jointly and severally,

 Defendants-Appellees (07-1051),

MARY J. BLIGE; ASIAH LEWIS; LUCHANA N.

LODGE; UNIVERSAL-MCA MUSIC

PUBLISHING, INC., a Division of Universal

Studios; UNIVERSAL MUSIC GROUP, INC., in

its own right, Successor in Interest,

Defendants-Appellants (07-1566).

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Nos. 07-1051/1566

Appeal from the United States District Court

for the Eastern District of Michigan at Ann Arbor.

No. 04-60184—Marianne O. Battani, District Judge.

Argued: January 16, 2009

Decided and Filed: March 9, 2009 

Before: KENNEDY, COLE, and GILMAN, Circuit Judges.

_________________

COUNSEL

ARGUED: Benjamin Whitfield, Jr., BENJAMIN WHITFIELD, JR. & ASSOCIATES, PC,

Detroit, Michigan, for Appellants. Michael D. Socha, DICKINSON WRIGHT, Detroit,

Michigan, for Appellees. ON BRIEF: Benjamin Whitfield, Jr., BENJAMIN WHITFIELD,

JR. & ASSOCIATES, PC, Detroit, Michigan, for Appellants. Michael D. Socha,

1
Nos. 07-1051/1566 Jones et al. v. Blige et al. Page 2

DICKINSON WRIGHT, Detroit, Michigan, Daniel D. Quick, DICKINSON WRIGHT,

Bloomfield Hills, Michigan, for Appellees.

_________________

OPINION

_________________

COLE, Circuit Judge. Plaintiffs-Appellants Leonard Jones and James E. White

(collectively, “Plaintiffs”) sued Mary J. Blige, a singer, Asiah Lewis and Luchana M. Lodge,

lyricists, and Universal-MCA Music Publishing, Inc. and Universal Music Group, Inc.

(“Universal”) (collectively, “Defendants”) for copyright infringement. Plaintiffs claim that

a song by Blige, “Family Affair,” infringed a song created by Plaintiffs, “Party Ain’t Crunk,”

that Plaintiffs submitted to Universal on a demo compact disc (“CD”) prior to the release of

Blige’s song. The district court granted summary judgment to all Defendants. Plaintiffs

appeal that ruling, and Defendants Blige and Universal appeal the district court’s denial of

their motion for attorneys’ fees. For the reasons set forth below, we AFFIRM the district

court’s decisions.

I. BACKGROUND

A. Plaintiffs’ creation of “Party Ain’t Crunk”

The song alleged to have been infringed in this suit, “Party Ain’t Crunk,” was

recorded by an aspiring rap artist named Tim Acker, also known as “Benevolence.” Acker

is not a party to the suit. In 2000, White met Acker and became his manager. White

eventually registered “Party Ain’t Crunk” with the United States Copyright Office and is

listed as an author of the song. Jones, an occasional collaborator of White’s, shares an

interest in any revenues from “Party Ain’t Crunk” under a contractual agreement with White.

Jones introduced White to Dannie Longmire, the producer who created the music for “Party

Ain’t Crunk.”

“Party Ain’t Crunk” was written and recorded as follows: Sometime before

Christmas of 2000, White contacted Longmire and asked him to create musical tracks for

Acker to use in making a demo CD. Longmire created a number of “beat tracks”—beats

without melodies—and sent them to White around Christmas of 2000. Acker selected a
Nos. 07-1051/1566 Jones et al. v. Blige et al. Page 3

1

Citations to the Joint Appendix refer to case number 07-1051, Plaintiffs’ appeal of the grant of

summary judgment.

number of beat tracks he liked, and Longmire began creating melodies to add to them. In

March of 2001, Longmire created a melody, added it to one of the beat tracks, and named

the resulting song (for record-keeping purposes) “Jack 216”—this was essentially the nonlyrical portion of “Party Ain’t Crunk.”

In March or April of 2001, White and Acker met at Longmire’s home, which

contained a recording studio. Over the course of five days, Acker recorded lyrics over the

musical tracks Longmire had created, including the lyrics to “Party Ain’t Crunk,” which

White and Acker co-wrote. Following the week of recording, Longmire completed the

technical polishing of the songs on the demo CD. On May 7, 2001, White registered the CD

and its contents, including “Party Ain’t Crunk,” with the Copyright Office under the title

“Benevolent Vol. 1.”

B. White submits the demo to Universal

White attempted to generate interest in the demo CD at various record companies.

He had a business relationship with Adbul Fakir, a former member of the singing group “The

Four Tops,” and White consulted with Fakir about potential contacts within the music

industry. Andy McKaie, Senior Vice President of Artists and Repertoire for Universal

Music Enterprises, a division of Universal Music Group Recordings, Inc., was one of the

record executives Fakir knew, and Fakir permitted White to use his name as a reference with

McKaie. McKaie’s division at Universal does not publish new music; it re-issues priorreleased songs in compilations, such as “greatest hits” albums.

White pitched the Benevolent demo to McKaie by telephone in May of 2001,

referencing Fakir. According to White, McKaie told him to “send the product in.” (Joint

Appendix (“JA”) 135.)1

 Shortly thereafter, White hand-delivered a sealed package

containing a demo CD, a cover letter, photographs of Acker, and White’s business card

to the building in which McKaie’s office was located. After a few days, White called

McKaie’s office and spoke to his secretary, JoAnn Frederick. According to White,

Frederick said that McKaie was out of town, but the demo CD was “still on his desk,
Nos. 07-1051/1566 Jones et al. v. Blige et al. Page 4

[and] he is going to take a listen to it.” (JA 136.) White followed up with another call

shortly thereafter and again spoke to Frederick, who allegedly told him that “their

department had decided to pass on [the CD].” (JA 136.) At White’s request, Frederick

returned the materials White had submitted, although she did not include the original

envelope and cover letter, making it clear that White’s package had been opened. A

handwritten note in the return package read: “Jim [White]: MCA is not accepting any

unsolicited material at this time, Sorry. JoAnn.” (JA 19.) 

White also was unable to generate interest in the CD at other record companies.

When he heard Mary J. Blige’s song “Family Affair” on the radio in August of 2001,

White believed that it infringed “Party Ain’t Crunk,” which he had submitted to

Universal, the publisher of Blige’s records.

C. Defendants’ creation of “Family Affair”

“Family Affair” is the second song on Blige’s album entitled No More Drama,

which was released for commercial sale by Universal on August 28, 2001 and registered

with the Copyright Office on September 17, 2001. Blige is a nationally known artist,

and No More Drama was a commercial success, selling more than two million copies.

The musical (non-lyrical) portion of “Family Affair” was created by Andre Young, a

producer and performer of rap and hip-hop music publicly known as “Dr. Dre.” Young

was originally named as a defendant in this case, but the district court dismissed the

claims against him for lack of personal jurisdiction, a ruling that Plaintiffs do not appeal.

As a producer, Young typically creates musical tracks in a studio with several

other musicians and then provides those tracks to other artists who record vocals over

them. Young created an initial version of the musical portion of “Family Affair” on

September 13, 2000, as evidenced by a studio log and a recording bearing that date.

Young testified that he created this initial version in a studio with a bass player and a

keyboard player. The studio engineers working with Young entitled this version of the

song “Fragile” for record-keeping purposes. Several months later, on January 10, 2001,

“Fragile” was transferred from digital to analog format and, by that point, had been renamed “Family Affair.” Young testified that either Blige or her brother, songwriter
Nos. 07-1051/1566 Jones et al. v. Blige et al. Page 5

Bruce Miller, supplied the new name. The January 10, 2001 version of the non-lyrical

portion of “Family Affair” was in near-final form.

Young and Blige had previously agreed to collaborate on a song, and near the

end of 2000, Young sent her the music-only version of “Family Affair.” Blige recorded

vocals over the music. At Young’s suggestion, Blige later added a bridge—a transitional

passage that connects two parts of a song. Blige testified that she wrote the lyrics for the

bridge, while her brother and a team of writers (which would have included defendants

Lewis and Lodge) wrote the rest of the lyrics to “Family Affair.” She stated that she

created her contribution of the lyrics to “Family Affair” in late May or early June of

2001.

D. The district court’s decision 

After discovery, Defendants moved for summary judgment. The district court

granted summary judgment for Defendants Lewis and Lodge on two bases: First,

because Plaintiffs failed to respond to a request for admissions that the lyrics of the two

songs were not substantially similar and that Lewis and Lodge had no access to the lyrics

of “Party Ain’t Crunk,” the district court deemed Plaintiffs to have conceded these

points; second, the court found that, even reaching the merits, no reasonable juror could

find the lyrics of the two songs to be substantially similar. The district court also granted

summary judgment to the remaining Defendants, finding that Plaintiffs could not show

that those Defendants had access to Plaintiffs’ song and that, in any case, Defendants had

shown that they created “Family Affair” independently. During the course of the

litigation, the district court excluded both sides’ proposed expert witnesses—Plaintiffs’

because Plaintiffs failed to make her available for deposition on the court-ordered date

and Defendants’ for reasons not apparent from the record. After prevailing on their

motion for summary judgment, Defendants sought attorneys’ fees, which the district

court denied, finding that Defendants could not establish the factors that would support

a discretionary award of fees. 
Nos. 07-1051/1566 Jones et al. v. Blige et al. Page 6

II. ANALYSIS

A. Standard of review; legal standard for copyright infringement

We review a grant of summary judgment de novo. Miller v. Admin. Office of the

Courts, 448 F.3d 887, 893 (6th Cir. 2006). The moving party is entitled to summary

judgment “if the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). We view factual evidence in the light

most favorable to the non-moving party and draw all reasonable inferences in that

party’s favor. See Henderson v. Walled Lake Consol. Sch., 469 F.3d 479, 487 (6th Cir.

2006). Summary judgment is not appropriate if the evidence would permit a reasonable

jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 251-52. 

In copyright infringement cases, “summary judgment, particularly in favor of a

defendant, is a practice to be used sparingly” because substantial similarity is often an

extremely close question of fact, but “a court may compare the two works and render a

judgment for the defendant on the ground that as a matter of law a trier of fact would not

be permitted to find substantial similarity.” Kohus v. Mariol, 328 F.3d 848, 853 (6th Cir.

2003) (quoting Wickham v. Knoxville Int’l Energy Expo., Inc., 739 F.2d 1094, 1097 (6th

Cir. 1984)).

“To succeed in a copyright infringement action, a plaintiff must establish that he

or she owns the copyrighted creation, and that the defendant copied it.” Kohus, 328 F.3d

at 853; see also Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)

(stating that a copyright infringement claim requires proof of valid copyright and proof

of copying of original elements of allegedly infringed work). Where there is no direct

evidence of copying, a plaintiff may “establish an inference of copying by showing

(1) access to the allegedly-infringed work by the defendant(s) and (2) a substantial

similarity between the two works at issue.” Ellis v. Diffie, 177 F.3d 503, 506 (6th Cir.

1999); see also Fogerty v. MGM Group Holdings Corp., Inc., 379 F.3d 348, 352 (6th
Nos. 07-1051/1566 Jones et al. v. Blige et al. Page 7

Cir. 2004). A lesser showing of access (or even no showing at all) will suffice where the

works are “striking[ly]” similar, strongly suggesting that copying occurred. See Murray

Hill Publ’ns, Inc. v. Twentieth Century Fox Film Corp., 361 F.3d 312, 317 (6th Cir.

2004).

B. Plaintiffs failed to raise a triable issue of fact as to “access”

“Access is essentially hearing or having a reasonable opportunity to hear the

plaintiff[’s] work and thus having the opportunity to copy.” Ellis, 177 F.3d at 506

(quotation marks and citation omitted). “‘Access is proven when the plaintiff shows that

the defendant had an opportunity to [listen to] or copy plaintiff’s work.’” Murray Hill

Publ’ns, 361 F.3d at 316 (quoting Glanzmann v. King, 8 U.S.P.Q.2d (BNA) 1594, 1595

(E.D. Mich. 1988)). “‘Although evidence that a third party with whom both the plaintiff

and defendant were concurrently dealing had possession of plaintiff’s work is sufficient

to establish access by the defendant, access may not be inferred through mere

speculation or conjecture.’” Id. (quoting Ellis, 177 F.3d at 506 (additional internal

quotation marks omitted)). “‘A mere assertion of access, unsupported by probative

evidence is inadequate.’” Id. (quoting Glanzmann, 1988 U.S. Dist. LEXIS 15705, at *3).

“‘Nor is a ‘bare possibility’ of access sufficient . . .[; a] plaintiff must establish that

defendant(s) had a ‘reasonable possibility’ to view plaintiff’s work.’” Id. (quoting

Glanzmann, 8 U.S.P.Q.2d at 1595).

Plaintiffs base their theory of access on the following facts: White delivered a

demo CD that included “Party Ain’t Crunk” to McKaie at Universal with McKaie’s

permission; someone in McKaie’s office opened the package containing the CD;

Frederick told White that the CD (or the package containing it) was on McKaie’s desk

and that he would listen to it; and Blige and Young have business relationships with

Universal. In response, Defendants offered uncontroverted evidence that Blige, Young,

and the other artists who created “Family Affair” did not have access to “Party Ain’t

Crunk.” Frederick stated that she never listened to the CD or passed it on to any person,

including McKaie, but simply returned it to White. McKaie stated that he never

observed any materials submitted by White, did not listen to the demo CD, and did not
Nos. 07-1051/1566 Jones et al. v. Blige et al. Page 8

pass the demo CD on to any person involved with Blige’s album. Furthermore, McKaie

stated that he had not had any contact with any of the artists who created “Family Affair”

prior to the release of No More Drama. Blige did not know the names “Andy McKaie”

or “JoAnn Frederick.” Her only connection to McKaie is that she has a recording

contract with Universal. Young did not know McKaie or Frederick, and Young’s only

connection with McKaie is that Young’s record label, “Aftermath,” has a distribution

joint venture with a Universal entity called “Interscope.”

Plaintiffs’ assertions of a connection between McKaie and Defendants are

entirely unsupported by the record. Plaintiffs claim that McKaie is a “liason between

the departments that release old and new material and he has to coordinate with the new

release division on the creative end,” but they cite no support for this in the record (Pls.

Br. 25), nor does the record contain such support. Also without citation or support,

Plaintiffs claim that McKaie “was in a position to provide suggestions or comments to

Blige and Young.” (Id.) Plaintiffs point out that one of the songs on the No More

Drama album contains a sample of a television theme-song, and they claim that the

sample would have been cleared through McKaie’s department and that he therefore

“knew about the ‘No More Drama’ project and was working on it.” (Pls. Br. 25.) This

apparently is mere speculation, as the evidence Plaintiffs cite does not support their

claim that the sample originated from McKaie’s department or, if it had, that he would

have known about it. (JA 370.) Plaintiffs never deposed McKaie or Frederick and have

adduced no evidence at all about McKaie’s job description or responsibilities. They

have presented no evidence of the nature of Blige’s and Young’s relationships with

Universal that would permit a jury to conclude that they might have received a copy of

Plaintiffs’ song from McKaie or from anyone else. At the summary judgment phase,

Plaintiffs must come forward with some evidence that would allow a jury to conclude

that there was a reasonable possibility that the creators of “Family Affair” had access to

Plaintiffs’ song. Plaintiffs have not done so.

The legal authority on which Plaintiffs rely fails to support their claim of access.

Plaintiffs cite Kamar International, Inc. v. Russ Berrie & Co., 657 F.2d 1059, 1062 (9th
Nos. 07-1051/1566 Jones et al. v. Blige et al. Page 9

Cir. 1981), for the proposition that access may be established where the alleged infringer

and infringee “were dealing” with a third-party intermediary who had possession of the

work that was allegedly copied. In Kamar, the defendant, a seller of stuffed animals,

was found to have access to the “texture and design” of copyrighted stuffed animals sold

by plaintiff, a competitor, where the defendant purchased its stuffed animals from the

same foreign manufacturing companies that manufactured the plaintiff’s stuffed animals.

Id. at 1060, 1062. While it is true that both Young and Blige dealt with Universal in

certain respects, there is no evidence that either they or anyone else involved in the

creation of “Family Affair” had any contact with McKaie or his division, even indirectly.

In the other cases Plaintiffs cite, the alleged infringers had far more plausible

opportunities to view or listen to the allegedly copied material. See Bouchat v.

Baltimore Ravens, Inc., 241 F.3d 350, 354 (4th Cir. 2000) (finding sufficient evidence

of access where intermediary met with creators of allegedly infringing logo to discuss

the logo’s design); Moore v. Columbia Pictures Indus., Inc., 972 F.2d 939, 943 (8th Cir.

1992) (finding sufficient evidence of access where intermediary record executive knew

the alleged infringers well and had opportunity to provide input to them directly). 

Plaintiffs argue that they have established access by virtue of the “corporate

receipt” doctrine, under which possession of a work by one employee of a corporation

implies possession by another corporate employee who allegedly infringed the work. 

See 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.02[A] (2008).

This Court has not taken a published stance on the corporate receipt doctrine, but in one

unpublished opinion, we affirmed a district court’s refusal to infer access from bare

corporate receipt. See Glanzmann v. King, 887 F.2d 265 (6th Cir. 1989) (per curiam)

(unpublished). The district court in Glanzmann found that application of the corporate

receipt doctrine would have resulted in the “implausible . . . quantum leap” that author

Stephen King had access to a script submitted to a secretary at Columbia Pictures, even

though the evidence suggested no reasonable possibility that the script had made its way

to King. See Glanzmann, 1988 U.S. Dist. LEXIS 15705, at *3-6.
Nos. 07-1051/1566 Jones et al. v. Blige et al. Page 10

Other circuits have rejected “bare corporate receipt” as sufficient proof of access,

requiring plaintiffs to introduce some evidence that it was “reasonably possible that the

paths of the infringer and the infringed work crossed.” Towler v. Sayles, 76 F.3d 579,

583 (4th Cir. 1996) (requiring a “close relationship” for the corporate receipt doctrine

to apply); see also Jorgensen v. Epic/Sony Records, 351 F.3d 46, 48 (2d Cir. 2003)

(“[B]are corporate receipt . . . , without any allegation of a nexus between the recipients

and the alleged infringers, is insufficient to raise a triable issue of access.”); Moore, 972

F.2d at 942 (a “bare possibility” of access is not enough; rather, a plaintiff must show

that the defendant had a “reasonable possibility” of viewing his work).

While we are cautious of making it overly difficult for plaintiffs to establish

access where the chain of possession of a work within a corporation is difficult to prove,

Plaintiffs in this case have set forth no evidence tending to show a reasonable possibility

that their work made its way from McKaie to the creators of “Family Affair.” There is

no evidence that Blige, Young, or the other artists knew McKaie or worked with him,

even indirectly. There is no evidence of the nature of Blige’s and Young’s relationships

with Universal employees that would support an inference that McKaie transferred

Plaintiffs’ song to Blige or Young through other intermediaries at Universal. As far as

the record shows, Blige and Young were affiliated with McKaie only through an

attenuated corporate connection, and to find a reasonable possibility of access, a jury

would be required to make an implausible leap, unsupported by evidence other than bare

corporate receipt. Therefore, we affirm the district court’s determination that Plaintiffs

did not establish that Defendants had access to “Party Ain’t Crunk.”

The failure to offer proof of access cannot be excused in this case, because the

two songs at issue are not so strikingly similar as to “preclude[] the possibility of

independent creation.” See Murray Hill, 361 F.3d at 317 (citation and quotation marks

omitted). The district court found that the lyrics of the two songs are so dissimilar that

no jury could reasonably conclude that they had been copied. Aside from the lyrics, the

melodies and beats of the two songs do bear a passing resemblance to each other, but the

similarity is not so striking as to allow an inference that copying necessarily occurred.
Nos. 07-1051/1566 Jones et al. v. Blige et al. Page 11

C. Independent creation

Even if Plaintiffs had established an inference of copying, Defendants have

provided unrefuted evidence that they created “Family Affair” independently before

Plaintiffs created “Party Ain’t Crunk.” “[A]n inference of copying is rebuttable by

evidence of independent creation of the allegedly infringing work.” Ellis, 177 F.3d at

507; see also Fogerty, 379 F.3d at 352-53. Defendants have demonstrated through

testimony and studio records that Young created the core of the music of “Family

Affair” on September 13, 2000, and that he had brought the non-lyrical portion of the

song nearly to its final state by January 10, 2001. Longmire did not create the beat track

for “Party Ain’t Crunk” until late December of 2000, and he did not create the melody

for “Party Ain’t Crunk” until March of 2001. This proof of prior, independent creation

rebuts any alleged inference of copying of the non-lyrical portion of “Party Ain’t

Crunk.” See Fogerty, 379 F.3d at 352.

Blige stated that she recorded the lyrics of “Family Affair” in late May or early

June of 2001, which is after the alleged access occurred. Other than the bridge, which

she wrote herself, Blige was unable to add any information about the creation of the

lyrics, except to state that her brother and his team of writers had been responsible for

them and that, to her knowledge, they were original. Unlike the specific testimony from

Young about the creation of the music for “Family Affair,” the record does not contain

testimony from Blige’s brother or his team members detailing the creation of the lyrics.

Therefore, Defendants have proved independent creation only of the music, and not the

lyrics, of “Family Affair.” However, because Plaintiffs could not establish access, and

because the lyrics of the two songs are not so “striking[ly]” similar as to give rise to an

inference of copying, see Murray Hill, 361 F.3d at 317, the grant of summary judgment

as to the lyrics was also proper.

D. Attorneys’ fees

Defendants Blige and Universal appeal the denial of their motion for attorneys’

fees. Section 505 of the Copyright Act provides:
Nos. 07-1051/1566 Jones et al. v. Blige et al. Page 12

In any civil action under this title, the court in its discretion may allow

the recovery of full costs by or against any party other than the United

States or an officer thereof. Except as otherwise provided by this title,

the court may also award a reasonable attorney’s fee to the prevailing

party as part of the costs.

17 U.S.C. § 505. We review the district court’s denial of attorneys’ fees for abuse of

discretion. Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 807 (6th Cir.

2005). A district court abuses its discretion when it makes clearly erroneous factual

findings, improperly applies the law, or uses an erroneous legal standard. Adcock-Ladd

v. Sec’y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000).

“The discretion to grant attorney fees in copyright infringement cases is to be

exercised in an evenhanded manner with respect to prevailing plaintiffs and prevailing

defendants, and in a manner consistent with the primary purposes of the Copyright Act.”

Bridgeport Music v. Diamond Time, 371 F.3d 883, 893 (6th Cir. 2004). The

nonexclusive factors considered in exercising this discretion are: “frivolousness,

motivation, objective unreasonableness (factual and legal), and the need to advance

considerations of compensation and deterrence.” Dimension Films, 410 F.3d at 807

(citation omitted). Plaintiffs produced evidence of the following: a validly copyrighted

song, permission from an executive at Universal to submit a demo CD that included that

song, assurance from a secretary that the executive would listen to the demo CD, and the

return of the demo CD in a manner showing that someone had opened the package in

which it was submitted. Defendants’ evidence countering Plaintiffs’ theory of access

and showing independent creation was brought forth during discovery and was not

available to Plaintiffs when they filed their suit. Furthermore, Plaintiffs offered expert

testimony that the songs were similar, and although the testimony was excluded, its

existence weighed against deeming the suit frivolous. Accordingly, Plaintiffs’ case was

not frivolous or “objectively unreasonable.” Nor, as the case progressed, did Plaintiffs

conduct themselves in a manner that would justify us in finding that the district court’s

decision not to award fees was an abuse of discretion. Cf. Diamond Time, 371 F.3d at

896 (upholding award based on district court’s conclusion that “litigation was

undertaken and prosecuted in a fashion that would multiply the fees and encourage
Nos. 07-1051/1566 Jones et al. v. Blige et al. Page 13

nuisance settlement”). On the issue of deterrence, Defendants provide no reason to

question the conclusions of both the district and magistrate judges that awarding

attorneys’ fees in this case could deter copyright holders from bringing valid

enforcement actions. Therefore, we conclude that the district court’s denial of attorneys’

fees was not an abuse of discretion.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s grant of Defendants’

motion for summary judgment and AFFIRM the denial of attorneys’ fees.