Attorney Fee Recovery in Copyright Cases

The federal statutes that govern copyright infringement cases provide that “Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as a part of costs.” (17 U.S.C. 505) Under this provision, either the defendant or the plaintiff may recover their attorney fees if they are the prevailing party. Some courts have narrowly construed the provision to exclude the fees of experts retained by their attorneys to help them prevail. In cases where the plaintiff prevails with regard to some but not all of its claims, it will generally be allowed to recover some but not all of its attorney fees. The same does not appear to apply to defendants that are partially successful. However, awarding attorney fees up to the court’s discretion, and the court has a large measure of freedom to award fees or not based on its assessment of the overall equities of the case.

Unlike an award of attorney fees in patent and trademark cases, there is no requirement in a copyright case that fees be awarded only under “exceptional” circumstances. So, while fraudulent or unconscionable behavior on the part of the losing party will weight heavily toward an award of attorney fees, such behavior is not necessary. In that regard, it has been held that the purpose of the award is to encourage copyright holders to protect their rights. Still, in a cases where both parties acted in good faith and the matter ultimately turns on complex or novel issues of law, the court may decline to award fees.


The information contained in this blog is not legal advice and should not be relied on as such. For legal advice or for answers to specific questions, please contact the blog's author.