Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

Offers of Judgment and Copyright Litigation

By Francine Miller
November 02, 2005

Rule 68 of the Federal Rules of Civil Procedure provides a defendant with a means to encourage parties to settle their litigation before trial. A defendant may serve a plaintiff with an “an offer to allow judgment to be taken against [defendant] for the money or property or to the effect specified in the offer, with costs then accrued.” F.R.C.P. 68. If the offer is not accepted by the plaintiff, and the “judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.” Id.

Rule 68 by its own terms only refers to “costs”; but the Supreme Court has held that “costs” includes attorney's fees when the underlying statute at issue includes attorney's fees in its definition of costs. See Marek v. Chesny, 473 U.S. 1, 105 S.Ct. 3012 (1985). However, the Copyright Act provides that only the “prevailing party” in a copyright infringement suit may collect its attorney's fees as part of the costs the court can award at its discretion. 17 U.S.C. '505.

What is the relationship between Federal Rule 68 and Section 505 of the Copyright Act? If the defendant in a copyright litigation makes an offer of judgment that the plaintiff refuses, and the plaintiff is awarded damages for infringement that are less than the amount offered by defendant in the offer of judgment, do the post-offer “costs” governed by Rule 68 to which the defendant is entitled include attorney's fees? In other words, can a non-prevailing party collect attorney's fees under Rule 68 in a copyright litigation?

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
Major Differences In UK, U.S. Copyright Laws Image

This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.

The Article 8 Opt In Image

The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.

Strategy vs. Tactics: Two Sides of a Difficult Coin Image

With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.

Legal Possession: What Does It Mean? Image

Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.

The Anti-Assignment Override Provisions Image

UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?