Copyright Plaintiffs Beware

The First Circuit  Court of Appeals recently instructed that a  copyright infringement plaintiff who is, shall we say, a bully, may find itself paying not only his own attorney’s fees, but also the defendant’s. In T-Peg, Inc., et al. v. Vermont Timber Works,Inc., et al., the Circuit Court upheld District Judge Steven J. McAuliffe’s award of $35,000 in fees to Defendants. The Court informs us that proportionality in copyright litigation is not to be overlooked.   In other words, do not try to shoot a mouse with a cannon and expect the mouse’s estate to pay for your ammunition.

The Copyright Act provides:

§ 505. Remedies for infringement: Costs and attorney’s fees 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.

17 U.S.C. § 505.

“Prevailing party,” does not always mean”plaintiff” under the Copyright Act.  Additionally the District Courts have discretion in allowing attorney’s fees awards.

T-Peg involved a copyright infringement about architectural  design plans for a private residence.

Filed in 2003, the case finally went to trial in September 2009. The jury rejected Plaintiffs’ claims of copyright infringement and Defendants made an attorney’s fees application.  The trial judge granted the fee application and awarded $35,000 – down from the Defendants’ $200,000 request.  The damages Plaintiffs sought for the copyright infringement only totaled $65,350, prompting a lower attorney’s fees award.

The First Circuit, calling the reasoning “thoughtful”, approved of the District Court’s ruling reducing the fee award “to deter plaintiffs with reasonable claims from litigating in a manner greatly disproportional to the matter at stake”.

Plaintiffs appealed the fee award.  The only argument by Plaintiffs on appeal discussed by the First Circuit was the use of fee awards as a deterrent to copyright infringement plaintiffs.  Plaintiffs  argued that the District Court erred in using fee awards to deter parties “from litigating in a manner greatly disproportional to the matter at stake.”  The Circuit Court turned this argument aside. Citing Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)  (That’s right John Fogerty of Creedence Clearwater Revival), the First Circuit acknowledged that district courts may award attorney’s fees to discourage overly aggressive litigation

The First Circuit, calling the reasoning “thoughtful”, approved of the District Court’s ruling reducing the fee award “to deter plaintiffs with reasonable claims from litigating in a manner greatly disproportional to the matter at stake”.

 

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