Of the Tenth Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 08-1498

LATIN AMERICAN MUSIC COMPANY, d/b/a Asociación de Compositores y

Editores de Música Latinoamericana (ACEMLA); ASOCIACIÓN DE

COMPOSITORES Y EDITORES DE MÚSICA LATINOAMERICANA (ACEMLA),

Plaintiffs, Appellants,

v.

AMERICAN SOCIETY OF COMPOSERS AUTHORS AND PUBLISHERS,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Torruella, Baldock and Howard, *

Circuit Judges.

Mauricio Hernández Arroyo and Law Offices of Mauricio

Hernández Arroyo, on brief for appellants.

Richard H. Reimer, Diego A. Ramos, Fiddler González &

Rodríguez, PSC, Stephen S. Young, and Holland & Knight LLP, on

brief for appellee.

December 28, 2010
For further background, see Latin Am. Music Co. v. Am. 1

Society of Composers Authors and Publishers, 593 F.3d 95 (1st Cir.

2010), and Latin Am. Music Co. v. Archdiocese, 499 F.3d 32 (1st

Cir. 2007). 

"Caballo Viejo," or "Old Horse," a popular folk song in 2

Venezuela. 

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PER CURIAM. In this copyright case, plaintiff Latin

American Music Company ("LAMCO") has filed its second motion for

reconsideration of an order awarding attorneys' fees incurred on

appeal in favor of defendant American Society of Composers, Authors

and Publishers ("ASCAP"). Once again the motion is denied.

We begin with a brief sketch of the relevant background.1

As a result of its success defending a favorable jury verdict,

ASCAP applied for attorneys' fees incurred on appeal. LAMCO,

however, failed to respond within the time set by our local rules.

See First Circuit Local Rule 39.1(b) (requiring response to

application for attorneys' fees within thirty days). We carefully

reviewed ASCAP's application, and, after an additional month had

passed without response, we granted the application and awarded

ASCAP $89,327.52. Ten days after our order entered, LAMCO filed an

objection to ASCAP's application styled as a motion for

reconsideration. LAMCO attributed its tardiness to an "office

error," and raised a host of issues challenging the award,

including (1) ASCAP's status as a prevailing party, (2) whether

ASCAP registered the disputed song, and (3) the overall 2

reasonableness of the award. We reexamined ASCAP's application in
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light of LAMCO's untimely arguments, but ultimately concluded that

the award should stand. Accordingly, we denied LAMCO's motion.

The present motion covers little new ground. LAMCO

parrots the same excuse for its late objection, incorporates its

earlier arguments against an award, and adds an alternate argument

that, if we still think that attorneys' fees are appropriate, we

should remand to the district court "for the proper determination

of the award." ASCAP counters that LAMCO's arguments lack merit

and cross-moves for sanctions on the basis of LAMCO's repeated

attempts to revisit the award. See First Circuit Local Rule 38.0

(providing for "appropriate sanctions" in appeals involving

vexatious tactics).

The Copyright Act of 1976 permits courts, in their

discretion, to award reasonable attorneys' fees to the prevailing

party. § 101, 17 U.S.C. § 505 (2006); Fogerty v. Fantasy, Inc.,

510 U.S. 517, 535 (1994). A "prevailing party" is one who has

"prevailed on the merits of at least some claims," Torres-Negron v.

J & N Records, LLC, 504 F.3d 151, 164 (1st Cir. 2007) (quoting

Buckhannon Bd. & Care Home, Inc. v. Va. Dep't of Health & Human

Res., 532 U.S. 598, 603 (2001)), no matter whether he be a

plaintiff or a defendant. See Fogerty, 510 U.S. at 535 (involving

prevailing defendant). A showing of frivolity or bad faith is not

required; rather, the prevailing party need only show that its

opponent's copyright claims or defenses were "objectively weak."
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Garcia-Goyco v. Law Envtl. Consultants, Inc., 428 F.3d 14, 20 (1st

Cir. 2005).

We quickly dispense with LAMCO's arguments. First, there

is no serious question that ASCAP prevailed on the merits of

LAMCO's copyright claims. ASCAP was therefore a prevailing party

for purposes of § 505, and we chose, based on our discretion and

the weakness of LAMCO's claims, to award fees. Second, LAMCO's

argument that fees are barred because ASCAP failed to timely

register the disputed song was fatally underdeveloped, and

therefore waived. United States v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990). Third, LAMCO's challenge to the reasonableness of the

award was undermined, if not forfeited, by its own neglect. Its

objection was filed thirty-nine days late (a full ten days after we

entered the order granting ASCAP's application), and its

explanation for the late filing lacked the detail and support one

would expect under the circumstances. See, e.g., First Circuit

Local Rule 27(a)(2)(B)(i) (requiring submission of affidavits

necessary to support factual assertions in motions).

Finally, LAMCO's request for remand is unwarranted.

Although not appropriate in every case, we can award fees incurred

on appeal where, as here, the prevailing party has submitted

records that establish the reasonableness of the award. See, e.g.,

Gamma Audio & Video, Inc. v. Ean-Chea, 11 F.3d 1106, 1119 (1st Cir.

1993) ("under § 505 . . . this court may make an award of
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attorney's fees to the prevailing party for services rendered on

appeal"); 4 Melville B. Nimmer and David Nimmer, Nimmer on

Copyright § 14.10[E] at 14-242 (rev. ed. 2010) ("when the court of

appeals is in possession of detailed billing records, it may handle

the entire award"); see also Poy v. Boutelis, 92 Fed. App'x 5 (1st

Cir. 2004) (per curiam) (awarding attorneys' fees incurred on

appeal when prevailing party submitted "billing ledger pages

detailing the dates, time spent, and subject matter of counsel's

work").

LAMCO's motion for reconsideration is denied.

ASCAP's cross-motion for sanctions is denied.

So ordered.