Kirtsaeng v. Wiley, a Year Later — Attorney's Fees in Copyright Cases

According to a recent article in Law360, "a year later, experts say the impact of the U.S. Supreme Court’s Kirtsaeng v. John Wiley ruling on attorneys' fees in copyright cases has been clarity and consistency, not a huge change in the ways courts are ruling."  That decision was entered on June 9, 2016 and according to the article and the experts interviewed, the decision has not created a sea of change in the way district courts are ruling on attorney's fees in copyright cases.  Trial courts have focused on the reasonableness or lack of the losing party's position and have been less likely post-Kirtsaeng to award attorney's fees where a party maintained a reasonable position, even though they lost.  In Johnson v. Storix, a federal judge in California held that while a losing plaintiff had an objectively reasonable position, he still had to pay attorney's fees.

Future of Attorney's Fees in Copyright Cases

Given the overall message of the Kirtsaeng decision that trial courts should apply their discretion in awarding attorney's fees in copyright cases on as case-by-case basis given the totality of the circumstances, it is not likely that there will be a radical change on how fees will be awarded in the future.  However, it's only been a year since the Supreme Court decision, and trends may emerge as federal district courts apply the guidance.

Klemchuk LLP is an Intellectual Property Law, Litigation, and Transactions law firm located in Dallas, Texas.  The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights.  The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution.  The firm publishes the following blogs: Intellectual Property Law, Conversations with Innovators (interviews with thought leaders), Leaders in Law (discussions on timely law topics), and Culture Counts (thoughts on law firm culture and the business of the practice of law).