Tuesday, July 13, 2010
Copyright Law: Attorneys Fees To A Prevailing Party in an Infringement Action
Although the Copyright Act, 17 USC 505 permits judges in their discetion to allow costs to a prevailing party, and as part of costs to allow reasonable attorneys fees, there is a whole body of developing case law showing the minefields and hoops firms representing prevailing parties must jump through to get paid, and the many ways judges may exercise their discretion to deny attorneys fees.
Add Corbis Corp. v. Starr, --- F. Supp.2d ---, 2010 WL 2572049 (N.D. Ohio June 25, 2010) to the literature.
Judge Carr notes that the attorneys billed time in quarter-hour increments, rather than tenth of an hour increments, which he believes warrants a downward adjustment. He objects to the attorneys billing in block hour lumps and not describing their tasks. And he reviews the law of privilege, and finds that neither the work product privilege nor the attorney client privilege cover legal bills. He permits the firm to resubmit their bills in a redacted form to protect any purportedly privileged information.
In Chapter 18: Costs and Attorneys Fees of my Copyright Litigation Handbook, I cover the growing case law governing applications for attorneys fees and the various approaches taken in different Circuits. Getting paid is an uncertain business and the discretion of a judge to police over-reaching is considerable. Making a record showing exercise of "billing judgment" may be unfamiliar, but taking the time to trim bills to disallow efforts that ought not in fairness be charged to an adversary before submitting them to a court might save a painful review. On the other hand, there is case law supporting the concept that not every litigation strategy need be successful to be reasonable, particularly where an adversary is misbehaving.
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Labels: 17 USC 505, attorneys fees, billing judgment, copyright law, copyright litigation, copyright litigation handbook, costs
Partner in law firm Dunnington Bartholow & Miller LLP in New York City litigating in federal and state courts and arbitrations. Experienced trial and appellate practitioner. Author: Copyright Litigation Handbook (Thomson Reuters 2018-2019). The New York Law Journal called it "an indispensable guide". Board of Directors of the Fordham Law Alumni Association, former General Counsel & Director Federal Bar Association, FBA Chair of the Circuit VPs, ViP for Second Circuit. Member Board of Governors, National Arts Club. President, Network of Bar Leaders (2013-2014). Attorney advertising disclaimer - prior results do not guarantee success. The statements and opinions voiced here are my own and not of my law firm.