Work in Question
Order revising award of attorney fees (March 2015) PDF file
Comment by Charles Cronin
This dispute nicely illustrates the music industry maxim: “Have a hit, get a writ.” Music copyright infringement disputes typically involve plaintiffs seeking financial settlements from successful performers, but Marino v Usher takes the cake in terms of flagrant and misguided attempted opportunism. The gravamen of the plaintiff’s chaotic complaint lodged against numerous deep-pocketed defendants seems to be that the defendants didn’t properly credit the plaintiff on their hit “Bad Girl” thereby excluding him from the royalty stream associated with the song.
The disgraceful conduct of the plaintiff’s lawyer, Francis Malofiy, in prosecuting the case, prompted US District Court Judge Paul Diamond to issue sanctions, and ultimately initiate disbarment proceedings, against him. Judge Diamond also dismissed most of the claims, and awarded defendants over $1 million in attorney fees. In March, 2015, he drastically reduced that amount noting plaintiff’s high school education, a house appraised at $161,000 with a mortgage of $188,000, a workman’s comp award of $61,000, a pickup truck, a Harley Davidson motorcycle… you get the picture… The defendants sagely suggested that Marino might enhance his solvency, and ability to cover the attorney fees incurred by the defendant in this baseless case, by suing Malofiy for malpractice. Judge Diamond found this potential asset too speculative to affect the amount of his fee award.