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Supreme Court View On Copyright Attorney Fees
Attorney fee awards are a big issue in many of the copyright litigations that crop up in the entertainment industry. Now the U.S. Supreme Court has recalibrated the law of copyright fee shifting, telling the U.S. Court of Appeals for the Second Circuit that it was placing too much weight on the objective reasonableness of parties' litigation positions. “The court of appeals' language at times suggests that a finding of reasonableness raises a presumption against granting fees,” Justice Elena Kagan wrote for a unanimous court in Kirtsaeng v. John Wiley & Sons Inc., 15-375 (June 16, 2016), “and that goes too far in cabining how a district court must structure its analysis.”
Instead, lower courts must give due consideration to all other circumstances relevant to granting fees, including the ” Fogerty factors” articulated by the court 22 years ago in Fogerty v. Fantasy Inc., 510 U.S. 517 (1994): “frivolousness, motivation, objective unreasonableless, and the need in particular circumstances to advance considerations of compensation and deterrence.”
Although the Kirtsaeng decision could make copyright fee awards in the Second Circuit slightly easier to obtain, it may have the opposite impact in circuits such as the Fifth and Seventh, which employ a presumption in favor of fee shifting that losing parties must overcome.
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