Supreme Court to review standard for awarding attorneys’ fees in copyright cases

On January 15, 2016, the Supreme Court agreed to hear a case which requests that the Supreme Court determine the proper standard for attorneys’ fees awards in copyright cases.[1] The party requesting review by the Supreme Court, Kirstsaneg (“Petitioner”) prevailed against Respondent, John Wiley & Sons, Inc. (“Respondent”), who had sued the Petitioner for copyright infringement as a result of allegations that the Petitioner had purchased Respondent’s textbooks and then resold them without authorization.[2] Petitioner prevailed under the “first sale” doctrine which was found to be a complete defense to Respondent’s claims.[3] Having prevailed, Petitioner sought attorneys’ fees in the United States Court of Appeals for the Second Circuit, but his request was denied.[4] Generally, the Copyright Act provides a court with discretion to award a prevailing party its reasonable attorneys’ fees.[5]

In Petitioner’s petition for writ of certiorari requesting for the Supreme Court to hear his case, Petitioner alleges there is a split in the different Federal Circuit Courts regarding the standard for awarding attorneys’ fees in copyright cases.[6] Specifically, Petitioner alleges that had his request for attorneys’ fees been heard in a different circuit, such as the Ninth or Eleventh Circuits he would have definitely prevailed.[7] Petitioner also claims that he likely would have prevailed in the Third, Fourth, Fifth, Sixth or Seventh Circuits as well.[8] The difference between the Second Circuit and the other Circuits mentioned above, according to Petitioner, is that the Second Circuit “places ‘substantial weight’ on whether the losing party’s claim or defense was objectively unreasonable.”[9]

The Supreme Court recently addressed the standard for awarding attorneys’ fees under the Patent Act in Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749 (2014). However, as the Petitioner points out, the standards under the Patent and Copyright Acts are different.[10] A decision by the Supreme Court determining the proper standard for attorneys’ fees would have a significant impact. As evidenced by the Supreme Court’s recent decision regarding attorneys’ fee award under the Patent Act, it does not appear that the Supreme Court is hesitant to make such a definitive ruling. We will be monitoring the status of this case over the next several months.

Please contact our office if you have any questions regarding the information in this article.

Daniel Devine, Esq.
Santucci Priore, P.L.

[1] See, Kirtsaeng v. John Wiley & Sons, Inc., 2016 WL 205944 (Jan. 15, 2016).
[2] See,
[3] Id.
[4] Id.
[5] See, 17 U.S.C. § 505.
[6] See,
[7] Id.
[8] Id.
[9] Id.
[10] Id.

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