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How Do Attorney’s Fees Work In Copyright Cases?

by | Nov 7, 2022 | Copyright Law, Music Law, Photography Law |

If you are familiar with the law, you will be aware that whether a prevailing party is entitled to attorney’s fees largely depends on the area of law under which the lawsuit is filed.

In some lawsuits, neither party is entitled to attorney’s fees.  In other lawsuits, the prevailing party will be entitled to attorney’s fees.

For copyright cases, 17 U.S.C. §505 states that “the court in its discretion may allow recovery of full costs by or against any party…the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs”.

You will notice that 17 U.S.C. §505 does not require the court to award attorney’s fees to the prevailing party but rather states that the court may award attorney’s fees to the prevailing party.

Plainly, the “Court has discretion [in] grant[ing] attorney’s fees.  (Fogerty v. Fantasy, Inc., 510 U.S.C. 517, 534 (1994)).  However, “there is no precise rule or formula”, rather a Court should exercise “equitable discretion”.  (Id.).  In making its decision, the Court should consider, but is not limited to, the following factors: “frivolousness, motivation, objective unreasonableness…and… considerations of compensation and deterrence.”  (Id., at n. 19).

This means that according to the Supreme Court, in copyright cases, each Court, on a case-by-case basis, has discretion to award attorney’s fees if that Court so chooses based upon what is fair in relation to the previously stated factors.  The 9th Circuit, which has jurisdiction over California and Nevada, has followed the same or similar pattern as the Supreme Court.  (Other Circuits, however, have not necessarily followed the same pattern.  Therefore, research the law in your local jurisdiction before proceeding with any lawsuit).

Please remember, though, regardless of what is fair, a Court cannot award any attorney’s fees to a Plaintiff unless that Plaintiff has timely registered their work. Therefore, if a Plaintiff has not properly registered their work the above discussion is moot.

For more information on attorneys’ fees, please contact your lawyer for greater details as to the law, as well as any agreements between you and your lawyer concerning attorneys’ fees.

These blogposts shall not be constituted as legal advice and are for informational purposes only.  Each and every case is different and requires an attorney to examine the specific case in question to arrive at an adequate legal conclusion.  In addition, these blogposts are not updated, or edited, after the date of their initial post, and as such, the information contained within them may be outdated.  Finally, the above blogpost discusses the law as interpreted within the jurisdiction of the 9th Circuit.  Various federal circuits may have differing interpretations of the law.  Consult with your own personal attorney for more information on the subject matters.