A word of caution: attorneys’ fees cut both ways! Often plaintiffs bring copyright infringement claims expecting to win a big verdict (or settlement) which may include all or some portion of attorneys’ fees as provided by U.S. Copyright Law. The award of such fees are discretionary. Recently, both the Southern District of New York and the Central District of California awarded attorneys’ fees to DEFENDANTS on copyright claims. The Beastie Boys case (NY) and the New Girl TV show case (CA) provide a cautionary tale.
When making the attorney fee determination, the district courts look at several factors, including: the degree of success obtained on the claim, frivolousness, motivation, objective unreasonableness, and the need in certain circumstances to advance considerations of compensation and deterrence. Translation: When considering a copyright infringement claim, it is imperative that there be substantial basis in fact and law to support such a claim. Otherwise, you could be stuck paying the other side’s legal bills.