IP Law Daily, COPYRIGHT—S.D.N.Y.: Damon Dash loses yet another round in the courts, (Mar 23, 2023)

By Matthew Hersh, J.D.

The music industry executive and his fiancée will have to pay attorney fees for their “frivolous” lawsuit against a former collaborator.

An entrepreneur and music industry executive will have to pay attorney fees to a self-published book author and former movie collaborator after losing a copyright infringement lawsuit against the author, the federal court for Manhattan has held. The court’s opinion, in granting the motion for fees on behalf of the author, caps—at least for the moment—the second copyright infringement lawsuit between the two groups of litigants (Poppington LLC v. Brooks, March 23, 2023, Rakoff, J.).

The lawsuit is another round in a long-running dispute between Edwyna (E.W.) Brooks and Damon Dash. Brooks is the author of the self-published Mafietta: The Trilogy, a collection of books described on its Amazon page as the story of “when a good girl turns mafia queen.” (“If you're looking for a love story where your typical heroine wins the hot heartthrob's heart by flaunting her beauty to win him over,” the book’s publicity materials note, “you're in the wrong place.”) Dash is a prominent entrepreneur and a music industry executive who, among other things, co-founded Roc-A-Fella labels, the predecessor to UMG’s Def Jam Records.

The dispute began in 2015 when the Mafietta series was only in novella form (under the title Mafietta: Rise of the Female Boss). Brooks made a short film based on the novella with Dash, his then-girlfriend (now fiancée) Raquel Horn, and their production company Poppington LLC. Four years later, Brooks filed a lawsuit against Dash (and his production company) in the Southern District of New York over their distribution of the movie. In a 2020 ruling, that court found that Brooks owned the copyright to the Mafietta film and enjoined Dash from distribution the film without Brooks’ consent. The Second Circuit, in a summary order that made headlines, affirmed the decision.

But the dispute between the parties was far from over. Shortly after the Southern District’s order, Dash, Horn, and their production company turned around and filed a copyright infringement lawsuit against Brooks. This lawsuit centered around Brooks’ transformation of the Mafietta series of novellas into the self-published book Mafietta: The Trilogy (the one now selling on Amazon). The basis for that lawsuit was that the cover of the book allegedly used one of the photos that Horn (Dash’s then girlfriend) took on the set during production of the 2015 film.

In June of 2022 the Southern District granted summary judgment in favor of Brooks on the copyright infringement claim, leading to this motion for attorney fees.

Attorney fees. The court, finding it an easy decision, granted the motion for attorney fees. In deciding whether to award attorney fees in a copyright action, courts generally consider which party was the prevailing party, the frivolousness or objective unreasonableness of the losing party’s claims, and “the need to advance considerations of compensation and deterrence.” Brooks was plainly the prevailing party in the case, the court noted, by the other factors supported attorney fees as well.

The main factor supporting attorney fees was the timing and sequence of the lawsuit. Marietta: The Trilogy—the book whose cover allegedly purloined Horn’s photo—came out in 2015, shortly after the film was made. But neither Horn nor Dash expressed any concern over the photo, the court noted, until 2019—in the middle of the litigation over the rights to the film. Moreover, the court noted, Horn obtained registration of her copyright in the photo only in the days following the 2020 summary judgment ruling in that case. “This history strongly suggests,” the court noted, that “Horn filed this lawsuit in order to retaliate against Brooks for her earlier (entirely meritorious) action against Dash and Poppington.” The court could therefore “easily” conclude that attorney fees were warranted. The court accordingly awarded Brooks $444,496 in fees and costs.

The Case is No. 1:20-cv-08616-JSR.

Attorneys: Natraj Bhushan (Turturro Law, PC) for Poppington, LLC. Christopher Lloyd Brown (Brown & Rosen LLC) for Edwyna Brooks.

Companies: Poppington, LLC

Cases: Copyright NewYorkNews