Section 505 of the Copyright Act allows courts to award attorney’s fees to the prevailing party in a copyright case. Almost twenty years ago, the Supreme Court in Fogerty resolved a split among the circuits over the interpretation of that statute. First, it held that courts should apply several nonexclusive factors when determining if the prevailing party, whether defendant or plaintiff, should be entitled to recover attorney’s fees. Second, the Court refused to apply a presumption that the prevailing party will automatically recover attorney’s fees, opting instead for the districts courts to apply “equitable discretion” in awarding fees. But in recent years, the Seventh Circuit has called for “presumptive entitlement” of attorney's fees to the prevailing party. It also isolated two factors as being primary in its analysis: the strength of the prevailing party's case and the amount of damages the prevailing party obtained. Because the prevailing defendant typically receives no monetary award, the Seventh Circuit's factors tend to favor the defendant. This paper points out the number of problems with such a presumption, including: 1) its conflicts with the statute; 2) conflicts with the principles of Fogerty; and 3) its chilling effect on plaintiffs with legitimate claims.
William T. McGrath, Should There Be a Presumption Favoring Awards of Attorney’s Fees in Copyright Litigation?, 12 J. Marshall Rev. Intell. Prop. L. 630 (2013)