Attorney’s Fees in Copyright Infringement Cases

© is the copyright symbol in a copyright notice

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.

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.

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.

The remedies for infringement are outlined in 17 U.S.C. § 505 of The Copyright Act.  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.

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.

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 Should I Do If Someone Has Stolen My Intellectual Property Or I Am Involved In A Copyright Infringement Action?

If your rights have been violated and you are considering initiating an infringement action or you have been issued a demand letter or formal complaint, contact Rosenblum Law for a free consultation about your case.  An experienced attorney can advise you of your rights and help you throughout the complicated legal process that is copyright litigation.


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