who can award attorney fees in a copyright infringement us code

Full Answer

What is the remedy for copyright infringement?

In particular the Act states that 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, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.

What are the issues that the courts consider when awarding attorney fees?

Some of the issues that the courts consider when awarding attorney fees is first seeing whether the losing or non-prevailing party’s claims were frivolous and what was their motivation during the case. If the court finds that both the factual and legal arguments made by the non-prevailing party were unreasonable it may conclude that awarding attorney fees would satisfy the interests of justice.

What is copyright law?

Copyright law protects the owner of any original creative work that has been fixed in a tangible medium of expression. This means that owner has several exclusive rights such as the right to reproduce the work, create derivative works, distribute copies, the right to perform and a right to display the work.

Can a copyright case be recovered?

In copyright cases the court in its discretion may allow the recovery of full costs of litigation by or against any other party except against the United States. This means that the court can award reasonable attorney’s fees to the prevailing party in a copyright infringement case.

Is copyright infringement legal?

In the internet age, intellectual property has become an ever-increasing area of litigation and has seen vast changes in law. With millions of people downloading and uploading images on a daily basis, it’s no wonder that copyright infringement cases are popping up all across the country at a very high rate. Although many of these cases settle out before tried before a judge there are some issues that parties to a claim should know before bringing a lawsuit.

Does copyright law give attorney fees?

It should be noted that the Copyright Act stipulates awarding attorney fees to the ‘prevailing party’ and not the individual that initiates the lawsuit or alleges that an infringement of copyright has taken place. That being said although the presumption is that attorney fees are awarded to the prevailing party, still obtaining those fees can be tricky and is not something given automatically. So just because you won the case does not necessarily mean that a blank check will be provided to compensate an attorney for their efforts on the case.

What is the 505 copyright?

Section 505 of the Copyright Act allows the court to "award a reasonable attorney's fee to the prevailing party as part of the costs.". An award of attorney fees is a matter of the court's discretion. Fogerty v.

What are the key factors to emphasize in a copyright request?

In making a request for fees—or opposing one—the key factors to emphasize are (1) whether an award of fees will further the purposes of the Copyright Act, and (2) the reasonableness (or unreasonableness) of the party throughout the litigation.

What is the right to attribution of a visual work?

§ 106A (a), an artist who created a visual work has the right to attribution and to preserve the integrity of the artist's work, and may receive an award of fees for violations of this section without having registered the work.

Can you recover attorney fees for copyright litigation?

Considering the cost of copyright litigation, especially when compared to actual damages in many cases, the ability to recover attorney fees can change the dynamic of the litigation's course. Litigators serve their clients well by evaluating both their own ability to recover fees and their adversaries' possible recovery early in the case.

Do authors have to have copyright?

An author must have a registered copyright in order to file a suit for infringement in federal court. 17 U.S.C. § 411 (a). The work must be registered prior to infringement to be eligible to seek statutory damages and/or attorney fees. 17 U.S.C. § 412. However, if the author applies for registration after infringement commences ...

Can you recover attorney fees under 505?

A party who may be unable to recover its attorney fees under Section 505 for infringement may have other avenues for a fee award. Section 1202 of the Digital Millennium Copyright Act allows recovery of fees in cases where the infringer has (a) removed or altered copyright management information (including copyright notices and watermarks or (b) ...

What is the 505 copyright?

Section 505 of the Copyright Act (“the Act”) gives the trial judge the discretion to “award a reasonable attorney’s fee to the prevailing party. . . .” In deciding whether to award attorney’s fees, a trial judge determines who prevailed and whether the award will further the purposes of the Act. Merely because the plaintiff asserts claims that might be considered “objectively reasonable,” such will not thwart a prevailing defendant from successfully arguing for its attorney’s fees.

What are the benefits of copyright?

One of the benefits of registering your copyright in a work with the US Copyright Office is the opportunity to seek recovery of your attorney’s fees if you subsequently pursue an infringement action and are the “prevailing party.”

Which court case held that only taxable costs are recoverable?

In a unanimous decision by Justice Brett Kavanaugh dated March 4, 2019, the U.S. Supreme Court reversed the Ninth Circuit, holding that only taxable costs are recoverable.

Can a civil court recover full costs?

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.

Can trademark infringement attorney fees be granted?

Clients sometimes expect an award of trademark infringement attorney fees. They are not often granted. But with the right set of facts, attorney fees can be larger than the underlying damage award. Hiring a litigation attorney who has expertise in trademark law is critical if you want the best chance of an attorney fee award from the court.

Can a trademark owner use attorney fees?

The trademark owner sometimes use the possibility of an attorney fees award against Defendant as further leverage in enforcing alleged trademark rights .

What is the maximum amount of copyright damages?

Clause (2) of section 504 (c) provides for exceptional cases in which the maximum award of statutory damages could be raised from $10,000 to $50,000, and in which the minimum recovery could be reduced from $250 to $100. The basic principle underlying this provision is that the courts should be given discretion to increase statutory damages in cases of willful infringement and to lower the minimum where the infringer is innocent. The language of the clause makes clear that in these situations the burden of proving willfulness rests on the copyright owner and that of proving innocence rests on the infringer, and that the court must make a finding of either willfulness or innocence in order to award the exceptional amounts.

How much can a copyright owner recover?

It can exercise discretion in awarding an amount within that range but, unless one of the exceptions provided by clause (2) is applicable, it cannot make an award of less than $250 or of more than $10,000 if the copyright owner has chosen recovery under section 504 (c).

What is the innocent infringer clause?

Section 504 (c) (2) provides that, where such a person or institution infringed copyrighted material in the honest belief that what they were doing constituted fair use, the court is precluded from awarding any statutory damages. It is intended that, in cases involving this provision, the burden of proof with respect to the defendant’s good faith should rest on the plaintiff.

What is the exception for innocent infringers?

The exception, which would allow reduction of minimum statutory damages to $100 where the infringer “was not aware and had no reason to believe that his or her acts constituted an infringement of copyright,” is sufficient to protect against unwarranted liability in cases of occasional or isolated innocent infringement, and it offers adequate insulation to users, such as broadcasters and newspaper publishers, who are particularly vulnerable to this type of infringement suit. On the other hand, by establishing a realistic floor for liability, the provision preserves its intended deterrent effect; and it would not allow an infringer to escape simply because the plaintiff failed to disprove the defendant’s claim of innocence.

What is actual damages and profits?

In allowing the plaintiff to recover “the actual damages suffered by him or her as a result of the infringement,” plus any of the infringer’s profits “that are attributable to the infringement and are not taken into account in computing the actual damages,” section 504 (b) recognizes the different purposes served by awards of damages and profits. Damages are awarded to compensate the copyright owner for losses from the infringement, and profits are awarded to prevent the infringer from unfairly benefiting from a wrongful act. Where the defendant’s profits are nothing more than a measure of the damages suffered by the copyright owner, it would be inappropriate to award damages and profits cumulatively, since in effect they amount to the same thing . However, in cases where the copyright owner has suffered damages not reflected in the infringer’s profits, or where there have been profits attributable to the copyrighted work but not used as a measure of damages, subsection (b) authorizes the award of both.

What is the right of a copyright owner?

The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages . In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

What is subsection B in copyright?

However, in cases where the copyright owner has suffered damages not reflected in the infringer’s profits, or where there have been profits attributable to the copyrighted work but not used as a measure of damages, subsection (b) authorizes the award of both.