Simply Losing Fair Use Defense Did Not Means Fees Were Automatic.
Seltzer v. Green Day, Inc., Case No. 11-56573 (9th Cir. Aug. 7, 2013) (for publication) is a case where defendants’ win based on a fair use defense in a copyright infringement case was affirmed. However, the district court also awarded the defense a $201,012.50 fee award under Copyright Act § 505, concluding plaintiff’s case was objectively unreasonable. The Ninth Circuit reversed, not seeing it that way so that the merits victory stayed but the fee award went POOF!
The problem here, according to the federal court of appeals, was that a simple loss on the fair use defense did not mean the plaintiff’s case was objectively unreasonable, a predicate for fee-shifting under the Copyright Act. Actually, the case was quite close and the defense only won on 2 of the fair use defense factors rather than the 3 factors relied on by the district judge. Fee award vacated by the appellate court.