Reproduced with permission from BNA’s Patent, Trademark & Copyright Journal, 91 PTCJ 1663, 04/08/2016.
Copyright 姝2016 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com
COPYRIGHTS
The Supreme Court will soon hear oral arguments on standards for awarding attorneys’
fees to the winner of a copyright dispute. Currently there are at least three different tests
being applied by federal courts. Data analysis of how often plaintiffs and defendants receive
fee awards in copyright cases and comparisons to patent and trademark law can cast some
light on how the Supreme Court looks at this issue.
Context Is Everything: Evaluating Different Approaches Toward Attorneys’ Fees
Awards Under Copyright Act in Light of Supreme Court Review
BYNATALIE HANLON LEH AND LAURA GOODALL
The Supreme Court recently granted certiorari to
address the circuit splits regarding the appropriate
standard for awarding attorneys’ fees to prevailing
parties in copyright cases.
This article looks at relevant data for attorneys’ fees
awards in copyright law and provides a comparison and
contrast to the attorneys’ fees award standards and con-
siderations in patent and trademark law.
I. Attorneys’ Fees Awards in Copyright Cases
A. Fogerty v. Fantasy Inc.
In 1994, the Supreme Court took up the appropriate
standard for granting attorneys’ fees to prevailing par-
ties in copyright infringement suits in Fogerty v. Fan-
tasy Inc.
1
under the Copyright Act, which simply stated,
‘‘[T]he court may also award reasonable attorney’s fee
to the prevailing party as part of the costs.’’
2
Favoring an ‘‘evenhanded approach’’ over a ‘‘dual-
standard approach,’’ the court held that prevailing
plaintiffs and defendants are ‘‘to be treated alike’’ when
deciding attorneys’ fees motions.
3
It identified various ‘‘nonexclusive factors’’ already
employed by the Third Circuit for trial judges to con-
sider, including ‘‘frivolousness, motivation, objective
unreasonableness (both in the factual and in the legal
components of the case) and the need in particular cir-
cumstances to advance considerations of compensation
and deterrence.’’
4
The court stated that judges may use these discre-
tionary factors as long as the factors ‘‘are faithful to the
purposes of the Copyright Act.’’
5
The court emphasized that treating prevailing plain-
tiffs and defendants alike furthers the policy goals of
1
Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994).
2
3
Id. at 534.
4
Id. at 534 n.19.
5
Id.
Natalie Hanlon Leh is a co-partner-in-charge
of Wilmer Cutler Pickering Hale & Dorr LLP’s
Denver office and an experienced intellectual
property litigator. Laura Goodall is an associ-
ate in WilmerHale’s Palo Alto, Calif., office
in the litigation department, focusing on intel-
lectual property and art law matters.
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