Section 505 of the Copyright Act provides:
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.
Seems simple.
The court has two tasks in applying §505: first, deciding whether an award of attorney's fees is appropriate and, second, calculating the amount of the award.
Simple again.
When is an award appropriate? One must be a "prevailing party," meaning that ". . . one has to be awarded some relief by the court. Id. at 603, 121 S.Ct. 1835. The key inquiry is whether some court action has created a “material alteration of the legal relationship of the parties.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001).
So, once one prevails, the analysis goes on because, even if a plaintiff or defendant "prevails," the Supreme Court in rejected a rule requiring attorneys' fees in copyright infringement cases as a matter of course, instead leaving the question of attorneys fees to the discretion of district courts. Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). The Supremes ruled that “attorneys' fees are to be awarded to prevailing parties only as a matter of the court's discretion.”).
So, how does a Court determine its discretion? The Ninth Circuit tells the Court to look at factors. Five factors. They are:
(1) the degree of success obtained;
(2) frivolousness;
(3) motivation;
(4) objective unreasonableness (both in the factual and legal arguments in the case); and
(5) the need in particular circumstances to advance considerations of compensation and deterrence.
But, remember: the applicable standard depends on the statute, and Section 505 simply authorizes fee awards to the prevailing party.
Showing posts with label attorney fees. Show all posts
Showing posts with label attorney fees. Show all posts
Monday, April 5, 2010
Fees . . fees. . . fees . .
Section 505 of the Copyright Act provides:
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.
Seems simple.
The court has two tasks in applying §505: first, deciding whether an award of attorney's fees is appropriate and, second, calculating the amount of the award.
Simple again.
When is an award appropriate? One must be a "prevailing party," meaning that ". . . one has to be awarded some relief by the court. Id. at 603, 121 S.Ct. 1835. The key inquiry is whether some court action has created a “material alteration of the legal relationship of the parties.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001).
So, once one prevails, the analysis goes on because, even if a plaintiff or defendant "prevails," the Supreme Court in rejected a rule requiring attorneys' fees in copyright infringement cases as a matter of course, instead leaving the question of attorneys fees to the discretion of district courts. Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). The Supremes ruled that “attorneys' fees are to be awarded to prevailing parties only as a matter of the court's discretion.”).
So, how does a Court determine its discretion? The Ninth Circuit tells the Court to look at factors. Five factors. They are:
(1) the degree of success obtained;
(2) frivolousness;
(3) motivation;
(4) objective unreasonableness (both in the factual and legal arguments in the case); and
(5) the need in particular circumstances to advance considerations of compensation and deterrence.
But, remember: the applicable standard depends on the statute, and Section 505 simply authorizes fee awards to the prevailing party.
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.
Seems simple.
The court has two tasks in applying §505: first, deciding whether an award of attorney's fees is appropriate and, second, calculating the amount of the award.
Simple again.
When is an award appropriate? One must be a "prevailing party," meaning that ". . . one has to be awarded some relief by the court. Id. at 603, 121 S.Ct. 1835. The key inquiry is whether some court action has created a “material alteration of the legal relationship of the parties.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001).
So, once one prevails, the analysis goes on because, even if a plaintiff or defendant "prevails," the Supreme Court in rejected a rule requiring attorneys' fees in copyright infringement cases as a matter of course, instead leaving the question of attorneys fees to the discretion of district courts. Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). The Supremes ruled that “attorneys' fees are to be awarded to prevailing parties only as a matter of the court's discretion.”).
So, how does a Court determine its discretion? The Ninth Circuit tells the Court to look at factors. Five factors. They are:
(1) the degree of success obtained;
(2) frivolousness;
(3) motivation;
(4) objective unreasonableness (both in the factual and legal arguments in the case); and
(5) the need in particular circumstances to advance considerations of compensation and deterrence.
But, remember: the applicable standard depends on the statute, and Section 505 simply authorizes fee awards to the prevailing party.
Tuesday, March 11, 2008
Even More Karoake . . .
Thank God copyright was invented to protect song owners against karoake. It appears that the karoake wars continue, and the battleground is the Ninth Circuit. Now the karoake record producers are suing each other and using copyright.
Who? Sybersound sued twelve competitors. What for? Cheating. Sybersound said its competitors represented to buyers that their songs were properly licensed, but they were not, and that they were using songs to which Sybersound held the copyright license. Sybersound attempts to couch a unique Lanham Act claim, i.e., that their competitors were improperly claiming to have copyright licenses, and Sybersound directly made a copyright infringement claim as a licensee.
To be fair, Sybersound says that the false representations to customers about having copyright permissions are the Lanham Act violations. But the Court would not go for this "theory":
The Ninth Circuit finds a Supreme Court case, Dastar, addressing the interplay between the Lanham Act and copyright. There, an author used the Lanham Act to claim that, after a television series passed into the public domain, the producer failed to attribute the series to him, and the Supremes said that using the Lanham Act to extend attribution of the source of goods through the Lanham Act would be granting a perpetual right to a facet of copyright, but it commented that making a misrepresentation would be a Lanham Act claim. So, Sybersound wins, right? Wrong. The Ninth Circuit argues that:
Perhaps the explanation is the Sybersound was greedy, also suing in copyright even though its assignment was not exclusive. The Copyright Act permits exclusive rights to be chopped up and owned separately, to be effective as a transfer of ownership, the assignment must be exclusive. And only owners may sue in copyright.
Who? Sybersound sued twelve competitors. What for? Cheating. Sybersound said its competitors represented to buyers that their songs were properly licensed, but they were not, and that they were using songs to which Sybersound held the copyright license. Sybersound attempts to couch a unique Lanham Act claim, i.e., that their competitors were improperly claiming to have copyright licenses, and Sybersound directly made a copyright infringement claim as a licensee.
To be fair, Sybersound says that the false representations to customers about having copyright permissions are the Lanham Act violations. But the Court would not go for this "theory":
Under copyright law, only copyright owners and exclusive licensees of copyright may enforce a copyright or a license. See 17 U.S.C. § 501(b) (conferring standing only to the “legal or beneficial owner of an exclusive right” who “is entitled . . . to institute an action for any infringement . . . while he or she is the owner of it”); Silvers, 402 F.3d at 885. Therefore, third party strangers and nonexclusive licensees cannot bring suit to enforce a copyright, even if an infringer is operating without a license to the detriment of a nonexclusive licensee who has paid full value for his license. See 3-10 Melville B. Nimmer;David Nimmer, Nimmer on Copyright, § 10.02 [B] [1] (2007).Does that really respond to the Plaintiff's theory?
The Ninth Circuit finds a Supreme Court case, Dastar, addressing the interplay between the Lanham Act and copyright. There, an author used the Lanham Act to claim that, after a television series passed into the public domain, the producer failed to attribute the series to him, and the Supremes said that using the Lanham Act to extend attribution of the source of goods through the Lanham Act would be granting a perpetual right to a facet of copyright, but it commented that making a misrepresentation would be a Lanham Act claim. So, Sybersound wins, right? Wrong. The Ninth Circuit argues that:
Construing the Lanham Act to cover misrepresentations about copyright licensing status as Sybersound urges would allow competitors engaged in the distribution of copyrightable materials to litigate the underlying copyright infringement when they have no standing to do so because they are nonexclusive licensees or third party strangers under copyright law, and we decline to do so.That makes little sense to me.
Perhaps the explanation is the Sybersound was greedy, also suing in copyright even though its assignment was not exclusive. The Copyright Act permits exclusive rights to be chopped up and owned separately, to be effective as a transfer of ownership, the assignment must be exclusive. And only owners may sue in copyright.
Even More Karoake . . .
Thank God copyright was invented to protect song owners against karoake. It appears that the karoake wars continue, and the battleground is the Ninth Circuit. Now the karoake record producers are suing each other and using copyright.
Who? Sybersound sued twelve competitors. What for? Cheating. Sybersound said its competitors represented to buyers that their songs were properly licensed, but they were not, and that they were using songs to which Sybersound held the copyright license. Sybersound attempts to couch a unique Lanham Act claim, i.e., that their competitors were improperly claiming to have copyright licenses, and Sybersound directly made a copyright infringement claim as a licensee.
To be fair, Sybersound says that the false representations to customers about having copyright permissions are the Lanham Act violations. But the Court would not go for this "theory":
The Ninth Circuit finds a Supreme Court case, Dastar, addressing the interplay between the Lanham Act and copyright. There, an author used the Lanham Act to claim that, after a television series passed into the public domain, the producer failed to attribute the series to him, and the Supremes said that using the Lanham Act to extend attribution of the source of goods through the Lanham Act would be granting a perpetual right to a facet of copyright, but it commented that making a misrepresentation would be a Lanham Act claim. So, Sybersound wins, right? Wrong. The Ninth Circuit argues that:
Perhaps the explanation is the Sybersound was greedy, also suing in copyright even though its assignment was not exclusive. The Copyright Act permits exclusive rights to be chopped up and owned separately, to be effective as a transfer of ownership, the assignment must be exclusive. And only owners may sue in copyright.
Who? Sybersound sued twelve competitors. What for? Cheating. Sybersound said its competitors represented to buyers that their songs were properly licensed, but they were not, and that they were using songs to which Sybersound held the copyright license. Sybersound attempts to couch a unique Lanham Act claim, i.e., that their competitors were improperly claiming to have copyright licenses, and Sybersound directly made a copyright infringement claim as a licensee.
To be fair, Sybersound says that the false representations to customers about having copyright permissions are the Lanham Act violations. But the Court would not go for this "theory":
Under copyright law, only copyright owners and exclusive licensees of copyright may enforce a copyright or a license. See 17 U.S.C. § 501(b) (conferring standing only to the “legal or beneficial owner of an exclusive right” who “is entitled . . . to institute an action for any infringement . . . while he or she is the owner of it”); Silvers, 402 F.3d at 885. Therefore, third party strangers and nonexclusive licensees cannot bring suit to enforce a copyright, even if an infringer is operating without a license to the detriment of a nonexclusive licensee who has paid full value for his license. See 3-10 Melville B. Nimmer;David Nimmer, Nimmer on Copyright, § 10.02 [B] [1] (2007).Does that really respond to the Plaintiff's theory?
The Ninth Circuit finds a Supreme Court case, Dastar, addressing the interplay between the Lanham Act and copyright. There, an author used the Lanham Act to claim that, after a television series passed into the public domain, the producer failed to attribute the series to him, and the Supremes said that using the Lanham Act to extend attribution of the source of goods through the Lanham Act would be granting a perpetual right to a facet of copyright, but it commented that making a misrepresentation would be a Lanham Act claim. So, Sybersound wins, right? Wrong. The Ninth Circuit argues that:
Construing the Lanham Act to cover misrepresentations about copyright licensing status as Sybersound urges would allow competitors engaged in the distribution of copyrightable materials to litigate the underlying copyright infringement when they have no standing to do so because they are nonexclusive licensees or third party strangers under copyright law, and we decline to do so.That makes little sense to me.
Perhaps the explanation is the Sybersound was greedy, also suing in copyright even though its assignment was not exclusive. The Copyright Act permits exclusive rights to be chopped up and owned separately, to be effective as a transfer of ownership, the assignment must be exclusive. And only owners may sue in copyright.
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