Sanctuary Records Group Seeks Appellate Attorney’s Fees After Defensing Right Of Publicity/Lanham Act Claims Against Beach Boys Writer Mike Love
Katy Perry Create a Stir With Ending Lines in Hit “California Gurls.”
Sanctuary Records Group Ltd. defensed Mike Love, one of the writers for “The Beach Boys,” in a lawsuit alleging right of publicity/Lanham Act claims involving distribution of Mail on Sunday and Good Vibrations in the United Kingdom and Ireland.
Sanctuary was also awarded attorney’s fees of $149,264.75 under California’s right of publicity fee shifting statute (Civ. Code, § 3344(a)) and the Lanham Act (15 U.S.C. § 1117(a), which allows a fee award where the defendant acted maliciously, fraudulently, deliberately, or willfully). Love appealed the adverse rulings to the Ninth Circuit, which affirmed in a recent published decision earlier this year.
Now, Sanctuary has sought to recoup attorney’s fees for their successful work to the tune of $67,495. The successful appellate work for Sanctuary was performed by
Gregory J. Aldisert and Gregory S. Gabriel of Kinsella Weitzman Iser Kump & Aldisert LLP.
This appellate fee motion does demonstrate the differences between how fees for appellate work are claimed at California state and federal court levels. At the state level, winning appellate attorneys having a basis for fee entitlement generally have 40 days after the remittitur is issued to seek fees, with the prevailing practice to seek them before the trial court judge assigned to the case. (See Cal. Rules of Court, rules 3.1702(c)(1), 8.278(c)(1).) However, winning appellate attorneys in cases decided by the Ninth Circuit generally have 14 days after the deadline for filing a petition for rehearing (which is 14 days from issuance of the appellate court opinion) in which to file a motion to recover appellate attorney’s fees. (9th Cir. Rule 39-1.6(a); Fed. R. App. P. 40(a)(1).) Also, the appeal fee request is heard by the Ninth Circuit itself, although certain parties can ask to have the matter transferred for consideration by the district judge or ask an appellate commissioner to make a recommendation/issue an order about the amount of fees to be awarded. (9th Cir. Rules 39-1.8, 1.9.)
In the News Extra: Mike Love apparently enjoys singer Katy Perry, who has a hit single in California Gurls. However, some controversy has arisen from the fact, at the end of the song, Snoop Dogg says “I wish you all could be California Gurls” (which contrasts with the line “I wish they all could be California Girls” from The Beach Boys’ California Girls legendary hit of 1965).
Hat tip to our friend/appellate specialist Ben Shatz at Manatt Phelps for providing us a copy of Sanctuary’s appellate fee motion in Love v. Wilson, Case No. CV-05-97798-ABC (C.D. Cal.), Case Nos. 07-56008/07-56568 (9th Cir.).