Well, the Ninth Circuit has somewhat sent out a warning: plaintiff with a “slim or none” copyright infringement case–in light of a meritorious fair use defense–needs to rethink or get hit with attorney’s fees under section 505 of the Copyright Act (17 U.S.C. §505), which allows a district court to grant to the prevailing party a “reasonable attorney’s fees.”
The defendants in a copyright case won a summary judgment based on fair use in a copyright infringement suit regarding use of a seven-second clip of Ed Sullivan’s introduction of the Four Seasons on The Ed Sullivan Show, with the clip being used in the Jersey Boys, defendants’ musical about the Four Seasons, to mark a historical point in the band’s career.
Aside from affirming the lower court’s grant of summary judgment, the Ninth Circuit in SOFA Entertainment, Inc. v. Dodger Productions, Inc., No. 10-56535 (9th Cir. Mar. 11, 2013) (published) found that the fair use doctrine did vindicate an important purpose under the Copyright Act, reason enough to affirm the $155,000 fee award in favor of defendants.
Note to our readers: With this post, we inaugurate a new sidebar category for fee decisions in the areas of patent, copyright, and trademark law: “Intellectual Property”.