9th Cir. Cues The ‘Traveling Music’ for a Prevailing Copyright Party.

In reversing an award of substantial attorneys fees in a copyright case, a Ninth Circuit panel reversed another panel’s seventy-year old ruling about whether a voluntary dismissal without prejudice makes the defendant a “prevailing party.” In Cadkin v. Loose, 2009 WL 1813263 (9th Cir. June 26, 2009), the parties were trusts formed by two former musical collaborators, who composed “cues,” which are “short musical works used” in TV and films.
‘We’ll be right back after this message; cue my music, Billie!’

Although the Ninth Circuit’s ruling in Corcoran v. CBS had been followed by courts there and in other circuits, it was “clearly irreconcilable” with a 2001 Supreme Court case on Fair Housing Act fee awards. The panel in Cadkin ruled that the “dictionary definition” of a prevailing party that J. Rehnquist applied in Buckhannon v. W.Va., 532 U.S. 598, 603 (2001) signaled a change in the application of each statute using that term. The panel held that a voluntary dismissal of a copyright case, even after some of plaintiff’s claims had been lost or dismissed, where it dismisses voluntarily without prejudice, does not cause a “material alteration of the legal relationship” between the litigants. Thus, the party benefitted by the voluntary dismissal is not a “prevailing party.” It could be sued again on the same claims.

The late plaintiff, Emil Cadkin, also composed film scores, such as one for “The Killer Shrews” featuring dog-sized shrews run amok on an isolated island and starring Ken Curtis, b/k/a Festus on TV’s Gunsmoke. Cue that killer reel up on your NetFlix account, and see if the shrews or the islanders prevail.