Attorney's Fees . . . Be Fair or Be Denied Attorneys' Fees in Copyright

The Copyright Act authorizes a court to award reasonable attorney’s fees to the prevailing party in a suit under the Act.

In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.

In Fogerty v. Fantasy, Inc., 510 U.S. 517, 534–35 (1994), the Supreme Court held that attorney’s fees should be awarded evenhandedly to both prevailing plaintiffs and defendants in copyright actions. But, the copyright attorney's fee rule is not the British rule, but one of discretion. Id., 10 U.S. at 534. The Supreme Court lists several non-exclusive factors that a court may consider in exercising its discretion: “frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.”

In two recent file-sharing cases, where record companies are unmercifully attacking file-sharing users, often college students, courts have awarded fees and denied fees to defendants when the record companies have "the wrong guy." In a Texas case, a father pointed to his adult daughter as the responsible party, but waited over eight months in the litigation to do so. After dismissing the case, the Court refused to award attorney's fees because of the defendants delay in the prompt resolution of the lawsuit. Virgin v. Thompson

href="www.thelen.com/tlu/VirginVThompson.pdf"

But, successfully getting the record companyies' claims dismissed, with prejudice, without misbehavior, should result in attorney's fees. Atlantic v. Andersen

http://www.thelen.com/tlu/AtlanticVAndersenJan08.pdf