First Circuit: Attorneys Fees and Costs May Far Exceed Damages In Copyright Infringement Cases

In Spooner v. EEN, Inc., 2011 WL 261178 (1st Cir. July 5, 2011), the First Circuit court of appeals considered a case where statutory damages were greatly outweighed by the attorneys fees awarded by the district court. The decision, helpful to any attorney hoping to get a sizeable fee award, is embedded below.

My book Copyright Litigation Handbook has an entire Chapter 18 titled Costs and Attorneys fees.  In Spooner, the First Circuit clarified that attorneys fees may be awarded "as costs".   So the appellate court does not have jurisdiction unless ALL costs have been fixed below, since it is then not a final judgment.  The Spooner court let the parties remedy the jurisdictional defect.

The various circuit courts of appeal take different approaches in awarding fees and costs. A knowledge of the case law is important to ensure that an application for attorneys fees and costs will be successful.


Spooner v EEN Inc

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Copyright Law: Attorneys Fees To A Prevailing Party in an Infringement Action

Although the Copyright Act, 17 USC 505 permits judges in their discetion to allow costs to a prevailing party, and as part of costs to allow reasonable attorneys fees, there is a whole body of developing case law showing the minefields and hoops firms representing prevailing parties must jump through to get paid, and the many ways judges may exercise their discretion to deny attorneys fees.

Add Corbis Corp. v. Starr, --- F. Supp.2d ---, 2010 WL 2572049 (N.D. Ohio June 25, 2010) to the literature.

Judge Carr notes that the attorneys billed time in quarter-hour increments, rather than tenth of an hour increments, which he believes warrants a downward adjustment.  He objects to the attorneys billing in block hour lumps and not describing their tasks.  And he reviews the law of privilege, and finds that neither the work product privilege nor the attorney client privilege cover legal bills.   He permits the firm to resubmit their bills in a redacted form to protect any purportedly privileged information.

In Chapter 18:  Costs and Attorneys Fees of my Copyright Litigation Handbook, I cover the growing case law governing applications for attorneys fees and the various approaches taken in different Circuits.  Getting paid is an uncertain business and the discretion of a judge to police over-reaching is considerable.  Making a record showing exercise of "billing judgment" may be unfamiliar, but taking the time to trim bills to disallow efforts that ought not in fairness be charged to an adversary before submitting them to a court might save a painful review.  On the other hand, there is case law supporting the concept that not every litigation strategy need be successful to be reasonable, particularly where an adversary is misbehaving.

 Purchase Copyright Litigation Handbook from West here