Attorneys' Fees and Other Costs

AuthorEric M. Stahl - Henry J. Tashman
Pages117-137
I. Overview
Section 505 of the Copyright Act provides a court with discretion to
award full recovery of costs, including “a reasonable attorney’s fee,” to
the prevailing party in any copyright action.
1
As detailed below, this
fee-shifting provision is “evenhanded,” applying equally regardless of
whether the prevailing party is the plaintiff or the defendant.
2
Unlike
the Lanham Act’s fee provision, no “exceptional” showing is required to
recover fees in a copyright case.
3
Nevertheless, a district court retains
broad discretion to award or deny fees, subject to the criteria discussed
in section II below. The amount of any fee award also rests in the
1. 17 U.S.C. § 505.
2. Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S. Ct. 1023, 127 L. Ed. 2d 455 (1994).
There is one exception: a prevailing plaintiff is eligible for fees only if the work was
timely registered with the Copyright Ofce, but registration has no bearing on a pre-
vailing defendant’s eligibility for fees. See infra section II.A.
3. See 15 U.S.C. § 1117(a); Historical Research v. Cabral, 80 F.3d 377, 378 (9th Cir.
1996) (district court erred in considering “exceptional circumstances” as a prerequisite
to a copyright fee award).
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CHAPTER 8
Attorneys’ Fees and
Other Costs
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district court’s discretion, subject only to the statutory requirement
that it be “reasonable.”4
The Digital Millennium Copyright Act (DMCA) has a separate
fee-shifting provision governing civil actions under the DMCA’s anti-
circumvention and copyright management information provisions.5
Like section 505 of the Copyright Act, the DMCA provision grants
the district court discretion to award a reasonable attorney’s fee to a
prevailing party.6 With one exception,7 courts treat fee requests from
prevailing DMCA litigants in the same manner as fee requests from
prevailing parties in copyright infringement cases, generally applying
all of the rules discussed below.8
II. Prerequisites to Fee Awards
There are three threshold requirements a party must meet to be eli-
gible for an award of fees under the Copyright Act. First, a copyright
owner is only eligible for fees and costs of suit if the work in question
was timely registered. Second, the party seeking the recovery must be
the “prevailing” party. Third, the party must bring a timely motion for
fees, generally within fourteen days of the court’s entry of judgment.
A. Timely Regis tration by Copyright Owner
Section 412 of the Copyright Act provides that to be eligible for an
4. 17 U.S.C. § 505.
5. See 17 U.S.C. §§ 1201–1203. These DMCA causes of action and available dam-
ages are discussed in chapter 5.
6. 17 U.S.C. § 1203(b)(5). This provision is arguably redundant given 17 U.S.C. § 505,
the Copyright Act’s general fee-shifting provision, which applies to “any civil action
under this title”—that is, Title 17.
7. The exception is that fee awards and other remedies under the DMCA are avail-
able regardless of whether the underlying work was registered with the Copyright Ofce.
See 17 U.S.C. §1203(a), (b)(5). In contrast, as discussed below, a copyright owner may
not recover fees (or statutory damages) absent a timely registration.
8. See, e.g., Tu v. TAD Sys. Tech. Inc., 2009 WL 2905780, at *8 (E.D.N.Y. Sept. 10,
2009); Echostar Satellite Corp. v. NDS Grp. PLC, 2008 WL 5116513, at *7 (C.D. Cal. Dec.
4, 2008), rev’d on other grounds, 390 Fed. App’x 764 (9th Cir. 2010). Fee awards and other
remedies under the DMCA are available regardless of whether the underlying work was
registered with the Copyright Ofce. See 17 U.S.C. § 1203(a), (b)(5).
CHAPTE R 8118
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