A recent Law360 story by Sameer Rao, “Judge Told to Slash ‘Friday The 13th’ Writer’s $1.2M Atty Fees,” reports that the fees that screenwriter Victor Miller seeks for the prominent copyright attorney who secured his win for the rights to his "Friday the 13th" script are needlessly high and based on improper tactics, according to opposition counsel's memorandum. The filing that calls for the fee bid's rejection drew from some of the accusations that Horror Inc., the Massachusetts company that owns the successful slasher film franchise that grew from Miller's 1980 screenplay, and co-plaintiff Manny Co. made against Miller's lawyer Marc Toberoff of Malibu, California-based Toberoff & Associates PC.
Among the memo's allegations is that about 15% of the $1.18 million attorney fees request is based on Toberoff's "procedurally improper motion" that used California's law prohibiting strategic lawsuits against public participation, or SLAAPs — a motion made invalid by the companies' Massachusetts and Connecticut bases and the trial's federal district court setting, the memo argued. The two plaintiffs also argued that Toberoff's repeated accusations of frivolous arguments and litigation misconduct by the companies' counsel, ranging from filing a supposedly retaliatory copyright action to using "scorched-earth tactics," were "unfounded" and "preposterous."
"Miller now argues that plaintiffs have misrepresented legal authority in their briefs," the filing continued. "Each of Miller's baseless accusations are belied by the actual content of plaintiffs' summary judgment briefs and the text of the authorities themselves. Miller's accusations are nothing more than an attempt to create a basis to award attorneys' fees where none exists."
The long-running trial in Connecticut's federal district court seemingly hit its climax this September, when an appeal to the Second Circuit ended in Miller being allowed to use a "termination right," which allows artists to regain rights to works they had previously signed over. The appellate ruling largely substantiated an earlier ruling by Connecticut U.S. District Judge Stefan R. Underhill, who granted Miller a summary judgment and agreed with his argument that the production companies did not sufficiently prove that he was their employee. The cases' implications for copyright law, termination rights, artists' obligations to producers and the "Friday the 13th" movies' future led to them being closely watched by entertainment industry observers.
Horror Inc. argued from the district court case's start that Miller had worked as a term employee and thus had no rights to his screenplay. Despite losing that battle, they argued in the memo that there was no guarantee of attorney fees under the Copyright Act because they raised "novel questions of law" regarding Miller's rights as both a Writers Guild of America member and contractor. They also said that the summary judgment made for a quick enough case, with limited discovery, that the fees were especially steep. "When a case raises a "novel and unsettled question of copyright law," an award of attorney's fees on the basis of purported unreasonableness is not warranted," the companies said. Horror Inc. and Manny Co., via their counsel from the Los Angeles law firm Greenberg Glusker Fields Claman & Machtinger LLP, seek to have the fees either thrown out or reduced to eliminate the time spent on the anti-SLAAP motion.
Reached Thursday, Toberoff said that he had not read the new opposition to his renewed fees bid. When its claims were described to him, he reiterated his justification of the anti-SLAPP invocation, given its applicability in a California federal district court case where he helped late musician Ray Charles' children get copyrights to his songs. He also rejected the characterization of his actions as misconduct and fees as excessive, citing a study of attorney fees from his motion that compared his to other firms' calculations.
"Their accusations are attempts at deflection," he told Law360 Pulse. "There's no basis for it, whereas there is a basis for what we say because it's documented in a declaration, which is attached as evidence." "Our fees were actually below the top average in [major U.S. cities," he added. "I would submit that are lower than what our opposing counsel charges."