Forum on Attorney's Fees in Copyright Cases: Are We Running through the Jungle Now or Is the Old Man Still Stuck Down the Road?
1997; Routledge; Volume: 39; Issue: 1 Linguagem: Inglês
ISSN
0043-5589
Autores Tópico(s)Intellectual Property Law
ResumoIn 1994, Supreme Court handed down Fogerty v. Fantasy, Inc.,(1) its only opinion ever to address matter of awarding fees in copyright infringement cases. In this forum, Paul Marcus and David Nimmer, two brothers in copyright law--who also happen to be brothers-in-law--put aside fraternal affections to debate implications of that ruling. I. SETTING THE STAGE FOR THE DEBATE DRONE ON(2) A. Background As leader of band Creedence Clearwater Revival,(3) John Fogerty both performed and wrote many songs. In 1970, he sold exclusive publishing rights in a composition entitled Run Through Jungle to predecessor of Fantasy, Inc.(4) Although band disbanded in 1972, Fogerty's career continued to flourish.(5) In 1985, he published a composition entitled Old Man Down Road.(6) Fantasy alleged that Fogerty thereby infringed copyright in his own earlier song.(7) In reply, Fogerty maintained that only similarities between two works inhered in obvious fact that they shared a common author--by no stretch of imagination did his assignment of earlier work constitute a permanent covenant to refrain from future songwriting.(8) Applying established copyright doctrine, jury found two tunes in issue not substantially similar(9) and hence returned a verdict in Fogerty's favor.(10) Having prevailed through a long, grueling fight, Fogerty wished to recover (along with his restored pride) attorney's fees that he had expended. The lower courts rebuffed his attempts.(11) The matter went to United States Supreme Court, and Court issued its ruling on award of attorney's fees in copyright infringement cases. Before turning to Court's opinion, some background is in order. B. The Law Before 1994 Copyright infringement actions can involve enormous economic stakes.(12) Moreover, copyright statute itself leverages financial impact of litigation in this sphere by even allowing award of attorney's fees, in contrast to traditional American rule.(13) It is, therefore, perhaps surprising that statutory language is so spare in discussing awarding of fees. Section 505 of Copyright Act of 1976 simply provides that the court may . . . award a reasonable attorney's fee to prevailing party as part of costs.(14) The Copyright Act gives no guidance on such important matters as how court is to determine who is prevailing party(15) or manner in which it is to measure reasonableness of a fee.(16) More to point, though, it appears that legislature failed to consider few crucial words regarding attorney's fees in copyright statute, the court may . . . The language, on its face, appears to grant trial court virtually unfettered discretion in an infringement action. The appeals courts, however, split sharply on way to exercise this discretion, particularly insofar as it related to actions in which defendants, rather than plaintiffs, prevailed. C. The Dual Approach Some courts awarded attorney's fees to prevailing plaintiffs in normal course of events, routinely, [b]ecause Copyright Act is intended to encourage suits to redress copyright infringement....(17) The Second and Ninth Circuits illustrate that trend.(18) Indeed, in its first opinion in Fogerty case, Ninth Circuit emphasized encouragement incentive in rejecting defendant's claim for an award. purpose of that rule is to avoid chilling a copyright holder's incentive to sue on colorable claims, and thereby to give full effect to broad protection for copyrights intended by Copyright Act.(19) Of course, with an emphasis on protection of copyright holder's interest, it is not surprising that prevailing plaintiffs had little problem in receiving awards. It is also not surprising that courts following this dual standard(20) would not allow awards to prevailing defendants without some showing of bad faith, a claim objectively without arguable merit. …
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