Copyright Attorney’s Fees

Thursday morning the U.S. Supreme Court unanimously decided Kirtsaeng v. John Wiley & Sons, Inc., per Justice Elena Kagan, the latest salvo in a fascinating copyright saga over John Wiley’s textbook business (see Slip, 1-2, where Justice Kagan tells the story of the plaintiff’s international entrepreneurial flair). The textbook company sued Kirtsaeng for copyright infringement, for illegally distributing their textbooks overseas (Copyright Act, §§106(3), 602(a)(1)), but he said the first sale doctrine applied in his defense. The case made  its way through the courts, and several years ago, the U.S. Supreme Court agreed that the first sale doctrine applied to allow the resale of foreign-made or domestically-made books (Slip, 2).

The Copyright Act (§505) allows a court to award attorney’s fees to the winning party in a copyright case. Having won, the plaintiff Mr Kirtsaeng had racked up about $2 million of legal bills, fighting his way through the courts and winning. The Court took up his case again to resolve a lower court split over how to calculate a reasonable attorney’s fee – give substantial weight to objective reasonableness (2nd Cir), look at the totality of circumstances (4th Cir), or simply presuming the winning party got its legal bill paid (5th Cir). The Supreme Court sent the legal bill back to the trial court for review, instructing them to effectively blend the lower court approaches and “giv[e] substantial weight to the reasonableness of Wiley’s litigating position, but also taking into account all other relevant factors” (Slip, 12) and noting “courts must view all the circumstances of a case on their own terms, in light of the Copyright Act’s essential goals” (Slip, 11).

My law firmJohnson Law KC LLC, is experienced counseling individual, corporate, and nonprofit clients on entertainment law, copyright, trademark, and IP litigation issues. We work with authors, musicians, artists, photographers, bloggers, songwriters, filmmakers, and others to provide cutting edge, reliable expertise on IP. We can help you answer these questions with confidence and friendly expertise. If we can serve you with your entertainment law, copyright, or IP questions, please call (913-707-9220) or email ( to schedule a free, convenient consultation.

(c) 2016, Stephen M. Johnson, Esq.

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