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 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.

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In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas.  He also co-founded Project K, a charity devoted to changing the world one random act of kindness at a time.  Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.