Recent Publications
By
Michelle Mancino Marsh and
James E. Rosini
- February 22, 2007
This article first appeared in World Copyright Law Report on February 22 2007.
A changing approach
Are plaintiffs more likely to receive awards?
A clear divide
Jurisdiction matters
Court A: "[T]he record does not demonstrate wilful or reckless conduct [by the defendant]." (1)
Court B: "[T]he court considers some of [the copyright owner's] conduct in this case questionable, such as waiting almost two years [.] to file this lawsuit and registering a copyright immediately prior to filing this lawsuit."(2)
Which court, A or B, in a recent copyright infringement case awarded attorneys' fees to the prevailing party in the case it decided? Surprisingly, not Court B. Court A awarded the plaintiff attorneys' fees because the copyright owner "was put to the trouble and expense" of suing the defendant. On the other hand, Court B declined to award fees to the defendant because fees were "not appropriate".
Although US federal copyright laws permit courts to use their discretion to award attorneys' fees to prevailing parties in any appropriate case, courts generally provide such damages to plaintiffs in cases of wilful infringement and to defendants when plaintiffs bring frivolous infringement suits. Although the results of the cases before Court A and Court B suggest otherwise, the Supreme Court has held that the award of attorneys' fees in copyright infringement cases does not turn on whether the potential recipient is a plaintiff or defendant.