Copyright trolls beware of defendant's attorneys fees

In May 2020, the Court of Appeals for the Ninth Circuit held in Doc's Dream, LLC v. Dolores Press, Inc. et al, No. 18-56073 (May 13, 2020) that "any action that turns on the existence of a valid copyright and whether that copyright has been infringed invokes the Copyright Act, and thus attorney’s fees may be available pursuant to [17 U.S.C.] § 505." (Order at page 4, hosted on Mega.nz).

In the case, the accused infringer filed a declaratory judgment lawsuit that the copyrighted works were abandoned. The district court granted summary judgment that the works were abandoned, and then denied the accused infringer's request for attorneys fees under 17 USC 505 holding that the claim did not require construction of the Copyright Act.

17 USC 505 states:

In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.

The Ninth Circuit reversed the district court and held that the Copyright Act expressly allows for a discretionary award of attorney’s fees in “any civil action under this title” and that the request for declaratory relief involved the Copyright Act.

If you are a serial copyright litigant, Doc's Dream is a big flag that you should proceed more cautiously.

Image by Karine T. Knudsen from Pixabay