Supreme Court of the United States
Fogerty v. Fantasy, Inc.
510 U.S. 517 (1994)
On Certiorari to the Ninth Circuit Court of Appeals
Fogerty v. Fantasy, Inc., 984 F.2d 1524 (9th Cir. 1993)
Reversed and remanded, 9(1)0
After petitioner Fogerty's successful defense of a copyright infringement action filed against him by
respondent Fantasy, Inc., the District Court denied his motion for attorney's fees pursuant to 17 U.S.C. §
505, which provides in relevant part that in such an action "the court may… award a reasonable
attorney's fee to the prevailing party as part of the costs." The Court of Appeals affirmed, declining to
abandon its "dual" standard for awarding § 505 fees under which prevailing plaintiffs are generally
awarded attorney's fees as a matter of course, while defendants must show that the original suit was
frivolous or brought in bad faith in favor of the so-called "evenhanded" approach, in which no distinction is made between prevailing plaintiffs and prevailing defendants.
Prevailing plaintiffs and prevailing defendants must be treated alike under § 505; attorney's fees are to be
awarded to prevailing parties only as a matter of the court's discretion. Pp. 522535.
(a) Fantasy's arguments in favor of a dual standard are rejected. Section 505's language gives no hint that
successful plaintiffs are to be treated differently than successful defendants. Nor does this Court's decision in
Christiansburg Garment Co. v. EEOC, 434 U. S. 412, which construed virtually identical language from Title VII
of the Civil Rights Act of 1964, support different treatment. The normal indication that fee-shifting statutes
with similar language should be interpreted alike is overborne by factors relied upon in Christiansburg and the
Civil Rights Act which are noticeably absent in the context of the Copyright Act. The legislative history of §
505 provides no support for different treatment. In addition, the two Acts' goals and objectives are not completely similar. The Civil Rights Act provides incentives for the bringing of meritorious lawsuits by
impecunious "private attorney general" plaintiffs who can ill afford to litigate their claims against defendants
with more resources. However, the Copyright Act's primary objective is to encourage the production of
original literary, artistic, and musical expression for the public good; and plaintiffs, as well as defendants, can
run the gamut from corporate behemoths to starving artists. Fantasy's argument that the dual approach to §
505 best serves the Copyright Act's policy of encouraging litigation of meritorious infringement claims
expresses a one-sided view of the Copyright Act's purposes. Because copyright law ultimately serves the
purpose of enriching the general [510 U.S. 517, ] public through
access to creative works, it is peculiarly important that the law's boundaries be demarcated as clearly as
possible. Thus, a defendant seeking to advance meritorious copyright defenses should be encouraged to
litigate them to the same extent that plaintiffs are encouraged to litigate meritorious infringement claims.
Fantasy also errs in urging that the legislative history supports the dual standard based on the principle of
ratification. Neither the two studies submitted to Congress while it considered revisions to the Act, nor the
cases referred to in those studies, support the view that there was a settled construction in favor of the dual
standard under the virtually identical provision in the 1909 Copyright Act. Pp. 522533.
(b) Also rejected is Fogerty's argument that § 505 enacted the "British Rule," which allows for automatic
recovery of attorney's fees by prevailing plaintiffs and defendants, absent exceptional circumstances. The
word "may" in § 505 clearly connotes discretion in awarding such fees, and an automatic award would
pretermit the exercise of that discretion. In addition, since Congress legislates against the strong background of the American Rule which requires parties to bear their own attorney's fees unless
Congress provides otherwise it would have surely drawn more explicit statutory language and
legislative comment had it intended to adopt the British Rule in § 505. While there is no precise rule or
formula for making fee determinations under § 505, equitable discretion should be exercised "in light of the
considerations [this Court] has identified." Hensley v. Eckerhart, 461 U. S. 424, 436437. Pp.
984 F.2d 1524, reversed and remanded.
Rehnquist, C. J., delivered the opinion of the Court, in which Blackmun, Stevens, O'Connor, Scalia,
Kennedy, Souter, and Ginsburg, JJ., joined. Thomas, J., filed an opinion concurring in the judgment, post, p. 535.
Kenneth I. Sidle argued the cause for petitioner. With him on the briefs were Vincent H. Chieffo and Julia L.
Lawrence S. Robbins argued the cause for respondent. With him on the brief were Carlos T. Angulo, Malcolm Burnstein, and Norman G. Rudman.
Jonathan A. Marshall, William G. Pecau, Jon R. Stark, Stephen P. Fox, and Roland I. Griffin filed a brief for Hewlett-Packard Co. as amicus curiae urging reversal.
Jack E. Brown, Chris R. Ottenweller, and Charles A. Blanchard filed a brief for Apple Computer, Inc., as amicus curiae urging affirmance.
Chief Justice Rehnquist delivered the opinion of the Court.
[510 U.S. 517, 519] The Copyright Act of 1976, 17 U.S.C. § 505, provides in relevant part that in any copyright infringement action "the court may… award a reasonable attorney's fee to the prevailing party as part of the costs." [note 1] The question presented in this case is what standards should inform a court's decision to award attorney's fees to a prevailing defendant in a copyright infringement action a question that has produced conflicting views in the Courts of Appeals.
Petitioner John Fogerty is a successful musician, who, in the late 1960's, was the lead singer and songwriter of
a popular music group known as "Creedence Clearwater Revival." [note 2] In 1970, he wrote a song entitled "Run Through the Jungle" and sold the exclusive publishing rights to predecessors-in-interest of respondent
Fantasy, Inc., who later obtained the copyright by assignment. The music group disbanded in 1972 and
Fogerty subsequently published under another recording label. In 1985, he published and registered a
copyright to a song entitled "The Old Man Down the Road," which was released on an album distributed by
Warner Brothers Records, Inc. Respondent Fantasy, Inc., [510 U.S. 517, 520] sued Fogerty, Warner Brothers, and affiliated companies [note 3] in District Court, alleging that "The Old
Man Down the Road" was merely "Run Through the Jungle" with new words. [note 4] The copyright infringement claim went to trial and a jury returned a verdict in favor of Fogerty.
After his successful defense of the action, Fogerty moved for reasonable attorney's fees pursuant to 17 U. S.
C. § 505. The District Court denied the motion, finding that Fantasy's infringement suit was not brought
frivolously or in bad faith as required by Circuit precedent for an award of attorney's fees to a successful
defendant. [note 5] The Court of Appeals affirmed, 984 F.2d 1524 (CA9 1993), and declined to abandon the existing Ninth Circuit standard for awarding attorney's fees which treats successful plaintiffs and successful
defendants differently. Under that standard, commonly termed the "dual" standard, prevailing plaintiffs are
generally awarded attorney's fees as a matter of course, while prevailing defendants must show that the
original suit was frivolous [510 U.S. 517, 521] or brought in bad
faith. [note 6] In contrast, some Courts of Appeals follow the so-called "evenhanded" approach in which no
distinction is made between prevailing plaintiffs and prevailing defendants. [note 7] The Court of Appeals for the
Third Circuit, for example, has ruled that "we do not require bad faith, nor do we mandate an allowance of
fees as a concomitant of prevailing in every case, but we do favor an even-handed approach." Lieb v. Topstone
Industries, Inc., 788 F.2d 151, 156 (1986).
We granted certiorari, 509 U. S. 903 (1993), to address an important area of federal law and to resolve the
conflict between the Ninth Circuit's "dual" standard for awarding attorney's fees under § 505, and the so-called "evenhanded" approach exemplified by the Third Circuit. [note 8] We reverse.
[510 U.S. 517, 522] Respondent advances three arguments in support of
the dual standard followed by the Court of Appeals for the Ninth Circuit in this case. First, it contends that
the language of § 505, when read in the light of our decisions construing similar fee-shifting language,
supports the rule. Second, it asserts that treating prevailing plaintiffs and defendants differently comports
with the "objectives" and "equitable considerations" underlying the Copyright Act as a whole. Finally,
respondent contends that the legislative history of § 505 indicates that Congress ratified the dual standard
which it claims was "uniformly" followed by the lower courts under identical language in the 1909 Copyright
Act. We address each of these arguments in turn.
The statutory language "the court may also award a reasonable attorney's fee to the prevailing party
as part of the costs" gives no hint that successful plaintiffs are to be treated differently from
successful defendants. But respondent contends that our decision in Christiansburg Garment Co. v. EEOC, 434
U. S. 412 (1978), in which we construed virtually identical language, supports a differentiation in treatment
between plaintiffs and defendants. Christiansburg construed the language of Title VII of the Civil Rights Act of
1964, which in relevant part provided that the court, "in its discretion, may allow the prevailing party
… a reasonable attorney's fee as part of the costs…." 42 U.S.C. § 2000e5(k). We
had earlier held, interpreting the cognate provision of Title II of that Act, 42 U.S.C. § 2000a3(b),
that a prevailing plaintiff "should ordinarily [510 U.S. 517, 523]
recover an attorney's fee unless some special circumstances would render such an award unjust." Newman v.
Piggie Park Enterprises, Inc., 390 U. S. 400, 402 (1968). This decision was based on what we found to be the
important policy objectives of the Civil Rights statutes, and the intent of Congress to achieve such objectives
through the use of plaintiffs as "'private attorney[s] general.'" Ibid. In Christiansburg, supra, we determined
that the same policy considerations were not at work in the case of a prevailing civil rights defendant. We
noted that a Title VII plaintiff, like a Title II plaintiff in Piggie Park, is "the chosen instrument of Congress to
vindicate 'a policy that Congress considered of the highest priority.'" 434 U. S., at 418. We also relied on the
admittedly sparse legislative history to indicate that different standards were to be applied to successful
plaintiffs than to successful defendants.
Respondent points to our language in Flight Attendants v. Zipes, 491 U. S. 754, 758, n. 2 (1989), that "fee-shifting statutes' similar language is a 'strong indication' that they are to be interpreted alike." But here we
think this normal indication is overborne by the factors relied upon in our Christiansburg opinion that are
absent in the case of the Copyright Act. [note 9] The legislative history of § 505 provides no support for treating
prevailing plaintiffs and defendants differently with respect to the recovery of attorney's fees. The attorney's
fees provision of § 505 of the 1976 Act was carried forward verbatim from the 1909 Act with very little discussion. [note 10] The relevant House Report provides simply:
"Under section 505 the awarding of costs and attorney's fees are left to the court's discretion, and the
section also makes clear that neither costs nor attorney's fees [510 U.S.
517, 524] can be awarded to or against ' the United States or an officer thereof.'" H. R. Rep. No.
941476, p. 163 (1976). [note 11]
See also S. Rep. No. 94473, p. 145 (1975) (same). Other courts and commentators have noted
the paucity of legislative history of § 505. See, e. g., Cohen v. Virginia Electric & Power Co., 617 F. Supp. 619,
621 (ED Va. 1985), aff 'd on other grounds, 788 F.2d 247 (CA4 1986). See also Jaszi, 505 And All
That The Defendant's Dilemma, 55 Law & Contemp. Prob. 107, 107108, and nn. 1, 2
The goals and objectives of the two Acts are likewise not completely similar. Oftentimes, in the civil rights
context, impecunious "private attorney general" plaintiffs can ill afford to litigate their claims against
defendants with more resources. Congress sought to redress this balance in part, and to provide incentives
for the bringing of meritorious lawsuits, by treating successful plaintiffs more favorably than successful
defendants in terms of the award of attorney's fees. The primary objective of the Copyright Act is to
encourage the production of original literary, artistic, and musical expression for the good of the public. See
infra, at 527. In the copyright context, it has been noted that "[e]ntities which sue for copyright infringement
as plaintiffs can run the gamut from corporate behemoths to starving artists; the same is true of prospective
copyright infringement defendants." Cohen, supra, at 622623. [510 U.S.
517, 525] We thus conclude that respondent's argument based on our fee-shifting decisions
under the Civil Rights Act must fail. [note 12]
Respondent next argues that the policies and objectives of § 505 and of the Copyright Act in general are best
served by the "dual approach" to the award of attorney's fees. [note 13] The most common reason advanced in
support of the dual approach is that, by awarding attorney's fees to prevailing plaintiffs as a matter of course,
it encourages litigation of meritorious claims of copyright infringement. See, e. g., McCulloch v. Albert E. Price,
Inc., 823 F.2d 316, 323 (CA9 1987) ("Because section 505 is intended in part to encourage the assertion of
colorable copyright claims, to deter infringement, and to make the plaintiff whole, fees are generally awarded
to a prevailing plaintiff ") (citations omitted); Diamond v. Am-Law Publishing Corp., 745 F.2d 142, 148 (CA2
[510 U.S. 517, 526] 1984) (same). Indeed, respondent relies heavily
on this argument. We think the argument is flawed because it expresses a one-sided view of the purposes of
the Copyright Act. While it is true that one of the goals of the Copyright Act is to discourage infringement, it
is by no means the only goal of that Act. In the first place, it is by no means always the case that the plaintiff
in an infringement action is the only holder of a copyright; often times, defendants hold copyrights too, as
exemplified in the case at hand. See Lieb v. Topstone Industries, Inc., 788 F.2d, at 155 (noting that "in many
cases the defendants are the [copyright] holders").
More importantly, the policies served by the Copyright Act are more complex, more measured, than simply
maximizing the number of meritorious suits for copyright infringement. The Constitution grants to
Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to
Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U. S. Const., Art. I,
§ 8, cl. 8. We have often recognized the monopoly privileges that Congress has authorized, while "intended
to motivate the creative activity of authors and inventors by the provision of a special reward," are limited in
nature and must ultimately serve the public good. Sony Corp. of America v. Universal City Studios, Inc., 464 U. S.
417, 429 (1984). For example, in Twentieth Century Music Corp. v. Aiken, 422 U. S. 151, 156 (1975), we discussed
the policies underlying the 1909 Copyright Act as follows:
"The limited scope of the copyright holder's statutory monopoly… reflects a balance of
competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private
motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the
other arts. The immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor.
But the ultimate aim is, by [510 U.S. 517, 527] this incentive, to
stimulate artistic creativity for the general public good." (Footnotes omitted.)
We reiterated this theme in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U. S. 340,
349350 (1991), where we said:
"The primary objective of copyright is not to reward the labor of authors, but '[t]o promote the
Progress of Science and useful Arts.' To this end, copyright assures authors the right to their original
expression, but encourages others to build freely upon the ideas and information conveyed by a work."
Because copyright law ultimately serves the purpose of enriching the general public through access to creative
works, it is peculiarly important that the boundaries of copyright law be demarcated as clearly as possible. To
that end, defendants who seek to advance a variety of meritorious copyright defenses should be encouraged
to litigate them to the same extent that plaintiffs are encouraged to litigate meritorious claims of
infringement. In the case before us, the successful defense of "The Old Man Down the Road" increased
public exposure to a musical work that could, as a result, lead to further creative pieces. Thus a successful defense of a copyright infringement action may further the policies of the Copyright Act every bit as much as a
successful prosecution of an infringement claim by the holder of a copyright.
Respondent finally urges that the legislative history supports the dual standard, relying on the principle of
ratification. See Lorillard v. Pons, 434 U. S. 575, 580 (1978) ("Congress is presumed to be aware of an
administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a
statute without change ..."). Respondent surveys the great number of lower court cases interpreting the
identical provision in the 1909 Act, 17 [510 U.S. 517, 528] U.S.C. §
116 (1976 ed.), and asserts that "it was firmly established" that prevailing defendants should be awarded
attorney's fees only where the plaintiff 's claim was frivolous or brought with a vexatious purpose. Brief for
Respondent 4045. Furthermore, respondent claims that Congress was aware of this construction of
former § 116 because of two copyright studies submitted to Congress when it was studying revisions to the
Act. W. Strauss, Damage Provisions of the Copyright Law, Study No. 22 (hereinafter Strauss Study), and R.
Brown, Operation of the Damage Provisions of the Copyright Law: An Exploratory Study, Study No. 23
(hereinafter Brown Study), Studies Prepared for Subcommittee on Patents, Trademarks, and Copyrights,
86th Cong., 2d Sess. (H. Judiciary Comm. Print 1960).
Before turning to the import of the two studies and the cases decided under the 1909 Act, we summarize
briefly the factual background of Lorillard, whence comes the statement upon which respondent relies. There
the question was whether there was a right to jury trial in an action for lost wages under the Age
Discrimination in Employment Act of 1967 (ADEA). In enacting that statute, Congress provided, inter alia,
that the provisions of the ADEA were to be "enforced in accordance with the 'powers, remedies and procedures'" of specified sections of the Fair Labor Standards Act (FLSA), 81 Stat. 604, 29 U.S.C. § 626(b).
Lorillard, 434 U. S., at 580. In the three decided cases which had treated the right to jury trial under the FLSA,
each court had decided that there was such a right. In enacting the ADEA, "Congress exhibited both a
detailed knowledge of the FLSA provisions and their judicial interpretation and a willingness to depart from
those provisions regarded as undesirable or inappropriate for incorporation." Id., at 581.
Here, by contrast, the Strauss and Brown Studies deal only briefly with the provision for the award of
attorney's fees. In the Strauss Study, the limited discussion begins with a quote to A. Weil, American
Copyright Law 530531 [510 U.S. 517, 529] (1917), for an
explanation of the "discretionary awarding of attorney's fees":
"'The amount of money frequently involved in copyright letigation [sic], especially on the part of the
defendant is trifling. The expense of any letigation [sic] is considerable. Unless, therefore, some provision is
made for financial protection to a litigant, if successful, it may not pay a party to defend rights, even if valid, a
situation opposed to justice .... It is increasingly recognized that the person who forces another to engage
counsel to vindicate, or defend, a right should bear the expense of such engagement and not his successful
opponent….'" Strauss Study 31.
The study then notes that the pending bills contemplate no change in the attorney's fees provision and
concludes with the simple statement "[t]he cases indicate that this discretion has been judiciously exercised by
the courts." Ibid. [note 14] This [510 U.S. 517, 530] limited discussion of
attorney's fees surely does not constitute an endorsement of a dual standard. The Brown Study was intended
as a supplement to the Strauss Study and, inter alia, provides information from a survey distributed to
practitioners about the practical work- [510 U.S. 517, 531] ings of
the 1909 Copyright Act. [note 15] It also does not endorse a standard of treating prevailing plaintiffs and defendants
differently. At one point, the study notes that "courts do not usually make an allowance at all if an
unsuccessful plaintiff 's claim was not 'synthetic, capricious or otherwise unreasonable, ' or if the losing
defendant raised real issues of fact or law." Brown Study 85. [note 16]
Our review of the prior case law itself leads us to conclude that there was no settled "dual standard"
interpretation of former § 116 about which Congress could have been aware. We note initially that at least
one reported case stated no reason in awarding attorney's fees to successful defendants. See, e. g., Marks v. Leo
Feist, Inc., 8 F.2d 460, 461 (CA2 1925) (noting that the Copyright Act gave courts "absolute discretion," the
court awarded attorney's fees to prevailing defendant after plaintiff voluntarily dismissed suit). More
importantly, while it appears that the majority of lower courts exercised their discretion in awarding
attorney's fees [510 U.S. 517, 532] to prevailing defendants based on
a finding of frivolousness or bad faith, not all courts expressly described the test in those terms. [note 17] In fact,
only one pre-1976 case expressly endorsed a dual standard. Breffort v. I Had a Ball Co., 271 F. Supp. 623
(SDNY 1967). [note 18] This is hardly the sort of uniform construction that Congress might have endorsed. [510 U.S. 517, 533] In summary, neither of the two studies presented to
Congress, nor the cases referred to by the studies, support respondent's view that there was a settled
construction in favor of the "dual standard" under § 116 of the 1909 Copyright Act.
We thus reject each of respondent's three arguments in support of the dual standard. We now turn to
petitioner's argument that § 505 was intended to adopt the "British Rule." Petitioner argues that, consistent
with the neutral language of § 505, both prevailing plaintiffs and defendants should be awarded attorney's
fees as a matter of course, absent exceptional circumstances. For two reasons we reject this argument for the
First, just as the plain language of § 505 supports petitioner's claim for disapproving the dual standard, it
cuts against him in arguing for the British Rule. The statute says that "the court may also award a reasonable
attorney's fee to the prevailing party as part of the costs." The word "may" clearly connotes discretion. The
automatic awarding of attorney's fees to the prevailing party would pretermit the exercise of that discretion.
Second, we are mindful that Congress legislates against the strong background of the American Rule. Unlike
Britain where counsel fees are regularly awarded to the prevailing party, it is the general rule in this country
that unless Congress provides otherwise, parties are to bear their own attorney's fees. Alyeska Pipeline Service
Co. v. Wilderness Society, 421 U. S. 240, 247262 (1975) (tracing the origins and development of the
American Rule); Flight Attendants v. Zipes, 491 U. S., at 758. While § 505 is one situation in which [510 U.S. 517, 534] Congress has modified the American Rule to allow an
award of attorney's fees in the court's discretion, we find it impossible to believe that Congress, without
more, intended to adopt the British Rule. Such a bold departure from traditional practice would have surely
drawn more explicit statutory language and legislative comment. Cf. Isbrandtsen Co. v. Johnson, 343 U. S. 779,
783 (1952) ("Statutes which invade the common law… are to be read with a presumption favoring
the retention of long-established and familiar principles, except when a statutory purpose to the contrary is
evident"). Not surprisingly, no court has held that § 505 (or its predecessor statute) adopted the British Rule.
Thus we reject both the "dual standard" adopted by several of the Courts of Appeals and petitioner's claim
that § 505 enacted the British Rule for automatic recovery of attorney's fees by the prevailing party.
Prevailing plaintiffs and prevailing defendants are to be treated alike, but attorney's fees are to be awarded to
prevailing parties only as a matter of the court's discretion. "There is no precise rule or formula for making
these determinations," but instead equitable discretion should be exercised "in light of the considerations we
have identified." Hensley v. Eckerhart, 461 U. S. 424, 436437 (1983). [note 19] Because the Court of Appeals
erroneously held petitioner, the prevailing defendant, to a more stringent standard than that applicable to a
prevailing [510 U.S. 517, 535] plaintiff, its judgment is reversed, and
the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
- The section provides in full: "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." 17 U.S.C. § 505.
- Creedence Clearwater Revival (CCR), recently inducted into the Rock and
Roll Hall of Fame, has been recognized as one of the greatest American rock and roll groups of all time.
With Fogerty as its leader, CCR developed a distinctive style of music, dubbed "swamp rock" by the media
due to its southern country and blues feel. Brief for Petitioner 45; see also Questions and Answers
with John Fogerty, Los Angeles Times, Jan. 12, 1993, section F, p. 1, col. 2.
- Pursuant to an agreement between Fogerty and the Warner defendants,
Fogerty indemnified and reimbursed the Warner defendants for their attorney's fees and costs incurred in
defending the copyright infringement action. Brief for Petitioner 4, n. 3.
- In addition to the copyright infringement claim, Fantasy asserted state
law and Lanham Act claims. These claims were voluntarily dismissed before trial. Petitioner also asserted
various counterclaims against Fantasy, which were ultimately dismissed on Fantasy's motion for summary
judgment. These related claims and counterclaims are not before this Court.
- In making its findings, the District Court stated: "Although the facts of
this case did not present the textbook scenario of copyright infringement, the Court has held that Fogerty
could indeed be held liable for copyright infringement even where he also wrote the song allegedly
infringed…. Nor does Fantasy's 'knowledge of Fogerty's creativity' mean that this suit was brought in
bad faith, where a finding of subconscious copying would have supported Fantasy's infringement claim."
App. to Pet. for Cert. A31 (citation omitted).
- By predicating an award of attorney's fees to prevailing defendants on a
showing of bad faith or frivolousness on the part of plaintiffs, the "dual" standard makes it more difficult for
prevailing defendants to secure awards of attorney's fees than prevailing plaintiffs. The Ninth Circuit has
explained that prevailing plaintiffs, on the other hand, should generally receive such awards absent special
circumstances such as "the presence of a complex or novel issue of law that the defendant litigates vigorously and in good faith…." McCulloch v. Albert E. Price, Inc., 823 F.2d 316, 323 (1987). In the instant
case, the Court of Appeals explained: "The purpose of [the dual standard] rule is to avoid chilling a copyright
holder's incentive to sue on colorable claims, and thereby to give full effect to the broad protection for
copyrights intended by the Copyright Act." 984 F.2d, at 1532.
- At oral argument, counsel for respondent voiced his dissatisfaction with
the terms "dual" and "evenhanded" used to describe the differing rules in the Circuits. Tr. of Oral Arg. 31.
Counsel objected to the implication from the terms that the Ninth Circuit's dual standard was
somehow not evenhanded or fair. While this point may be well taken in a rhetorical sense, we will continue
to use the terms as commonly used by the lower courts for the sake of convenience.
- In addition to the Ninth Circuit, the Second, Seventh, and District of
Columbia Circuits have adopted a "dual" standard of awarding attorney's fees whereby a greater burden is
placed upon prevailing defendants than prevailing plaintiffs. See, e. g., Diamond v. Am-Law Publishing Corp.,
[510 U.S. 517, 522] 745 F.2d 142, 148149 (CA2 1984);
Video Views, Inc. v. Studio 21, Ltd., 925 F.2d 1010, 1022 (CA7), cert. denied, 502 U. S. 861 (1991); Reader's
Digest Assn., Inc. v. Conservative Digest, Inc., 821 F.2d 800, 809 (CADC 1987). On the other hand, the Fourth
and Eleventh Circuits have been identified as following an "evenhanded" approach similar to that of the
Third Circuit. See, e. g., Sherry Manufacturing Co. v. Towel King of Florida, Inc., 822 F.2d 1031, 10341035,
n. 3 (CA11 1987); Cohen v. Virginia Electric & Power Co., 617 F. Supp. 619, 620623 (ED Va. 1985), aff
'd on other grounds, 788 F.2d 247 (CA4 1986).
- Additionally, we note that Congress, in enacting § 505 of the 1976 Copyright Act, could not have been aware of the Christiansburg dual standard as Christiansburg was not decided until
- For the former provision under the Copyright Act of 1909, see 17 U. S.
C. § 116 (1976 ed.).
- The 1976 Copyright Act did change, however, the standard for awarding
costs to the prevailing party. The 1909 Act provided a mandatory rule that "full costs shall be allowed." 17 U.
S. C. § 116 (1976 ed.) (emphasis added). The 1976 Act changed the rule from a mandatory one to one of
discretion. As the 1909 Act indicates, Congress clearly knows how to use mandatory language when it so
desires. That Congress did not amend the neutral language of the 1909 rule respecting attorney's fees lends
further support to the plain language of § 505 district courts are to use their discretion in awarding
attorney's fees and costs to the prevailing party.
- We note that the federal fee-shifting statutes in the patent and trademark
fields, which are more closely related to that of copyright, support a party-neutral approach. Those statutes
contain language similar to that of § 505, with the added proviso that fees are only to be awarded in "exceptional cases." 35 U.S.C. § 285 (patent) ("The court in exceptional cases may award reasonable attorney fees
to the prevailing party"); 15 U.S.C. § 1117 (trademark) (same). Consistent with the party-neutral language,
courts have generally awarded attorney's fees in an evenhanded manner based on the same criteria. For
patent, see, e. g., Eltech Systems Corp. v. PPG Industries, Inc., 903 F.2d 805, 811 (CA Fed. 1990) ("[T]here is and
should be no difference in the standards applicable to patentees and infringers who engage in bad faith
litigation"). For trademark, see, e. g., Motown Productions, Inc. v. Cacomm, Inc., 849 F.2d 781, 786 (CA2 1988)
(exceptional circumstances include cases in which losing party prosecuted or defended action in bad faith);
but see Scotch Whisky Assn. v. Majestic Distilling Co., 958 F.2d 594, 599 (CA4) (finding in the legislative history
that prevailing defendants are to be treated more favorably than prevailing plaintiffs), cert. denied, 506 U. S.
- Respondent points to four important interests allegedly advanced by the
dual standard: (1) it promotes the vigorous enforcement of the Copyright Act; (2) it distinguishes between
the wrongdoers and the blameless; (3) it enhances the predictability and certainty in copyrights by providing a
relatively certain benchmark for the award of attorney's fees; and (4) it affords copyright defendants
sufficient incentives to litigate their defenses.
- In a footnote, the Strauss Study lists several cases exemplifying the
courts' use of discretion. None of these cases explicitly require a dual standard of awarding attorney's fees,
but instead offer various reasons for awarding or not awarding attorney's fees to the prevailing party. Cases
cited by the study involving prevailing defendants: Overman v. Loesser, 205 F.2d 521, 524 (CA9 1953) (denying
counsel fees because there was "no indication that the appeal was pursued in bad faith" and "the principal
question [was] a complex question of law"); Official Aviation Guide Co. v. American Aviation Associates, 162 F.2d
541, 543 (CA7 1947) (denying attorney's fee where "[t]he instant case was hard fought and prosecuted in
good faith, and… presented a complex problem in law"); Rosen v. Lowe's Inc., 162 F.2d 785 (CA2
1947) (defendant prevailed; no discussion of attorney's fees); Advertisers Exchange, Inc. v. Anderson, 144 F.2d
907 (CA8 1944) (denying attorney's fee without comment in case involving defective copyright notice); Lewys
v. O'Neill, 49 F.2d 603, 618 (SDNY 1931) (awarding fees where plaintiff 's case was "wholly synthetic");
Metro Associated Services, Inc. v. Webster City Graphic, Inc., 117 F. Supp. 224 (ND Iowa 1953) (denying attorney's
fee without explanation where plaintiff filed defective copyright); Lowenfels v. Nathan, 2 F. Supp. 73, 80
(SDNY 1932) (awarding fees where "[t]he most earnest advocate of the plaintiff 's side… could not
… possibly find" any plagiarism by the defendant); [510 U.S. 517,
530] Jerome v. Twentieth Century-Fox Film Corp., 71 F. Supp. 914, 915 (SDNY 1946) (denying fee where
court "[could] very well understand how plaintiff was driven to some litigation, although the theory of [the]
action… was not supported by the proof"), 7 F. R. D. 190 (SDNY 1947), aff 'd, 165 F.2d 784 (CA2
1948). Cases cited by the study involving prevailing plaintiffs: Advertisers Exchange, Inc. v. Hinkley, 199 F.2d
313, 316 (CA8 1952) (denying an attorney's fee where plaintiff 's counsel attempted to inflate and exaggerate
plaintiff 's claim), cert. denied, 344 U. S. 921 (1953); Ziegelheim v. Flohr, 119 F. Supp. 324, 329 (EDNY 1954)
(court denied attorney's fee "since it appears to have… been a fairly common practice for publishers of
[prayer books] to copy rather freely from each other, and since much of plaintiff 's book was in the public
domain, and defendant honestly, but mistakenly, believed that plaintiff was illegally attempting to copyright
and monopolize the printing of ancient prayers"); Edward B. Marks Music Corp. v. Borst Music Pub. Co., 110 F.
Supp. 913 (NJ 1953) (court noted only that it would not award attorney's fee because such award is
discretionary); Stein v. Rosenthal, 103 F. Supp. 227, 232 (SD Cal. 1952) (awarding attorney's fees of $3,500 as
an amount "reasonably necessary to redress the infringement of plaintiffs' copyright"); Northern Music Corp. v.
King Record Distributing Co., 105 F. Supp. 393, 401 (SDNY 1952) (noting that prevailing plaintiff entitled to
receive a reasonable attorney's fee to be assessed by the court); White v. Kimmell, 94 F. Supp. 502, 511 (SD Cal.
1950) (copyright holder, who was a successful defendant in a declaratory judgment action, was awarded
costs but denied attorney's fee award without elaboration); M. Witmark & Sons v. Pastime Amusement Co., 298
F. 470, 482 483 (EDSC 1924) (court awarded a moderate attorney's fee after noting that full
allowance "would bear too heavily upon the defendant, in view of the character of the infringement and the
circumstances surrounding it; but, if no fee should be allowed at all in such cases, it would probably result in
many cases in a practical denial of the rights of copyright owners"). The study also cited to Jewell-LaSalle
Realty Co. v. Buck, 283 U. S. 202 (1931), a case that did not involve attorney's fees, but instead addressed the
damages provision of § 25 of the 1909 Act, 35 Stat. 1081.
- To this extent, the Brown Study focuses more on the effect that the
prospect of an award of attorney's fees has on decisions to litigate or to settle cases. Based on its interview
sources, the study concluded that the likelihood of getting a fee award is so problematic that "it is not a
factor" that goes into the decision to settle or litigate. Brown Study 85. The report also noted that its
observations about attorney's fees "are not intended as an exhaustive treatment of the subject" and that
"[attorney's fees'] deterrent effect on ill-founded litigation, whether by plaintiffs or defendants, is outside the
scope of this inquiry." Id., at 8586.
- Citing to Cloth v. Hyman, 146 F. Supp. 185, 193 (SDNY 1956) (it is proper
to award fees to prevailing defendant when copyright action is brought in bad faith, with a motive to "vex
and harass the defendant," or where plaintiff 's claim utterly lacks merit). The Brown Study also included
cites to Eisenschiml v. Fawcett Publications, Inc., 246 F.2d 598, 604 (CA7) (reversing attorney's fee award to
prevailing defendant as an abuse of discretion where plaintiff 's claim was not entirely without merit and
involved a close question of law), cert. denied, 355 U. S. 907 (1957); Marks v. Leo Feist, Inc., 8 F.2d 460, 461
(CA2 1925) (awarding attorney's fees to prevailing defendant after plaintiff voluntarily dismissed suit).
- See, e. g., Shroeder v. William Morrow & Co., 421 F. Supp. 372, 378 (ND Ill.
1976) (refusing to award prevailing defendant an attorney's fee because plaintiff 's action was "prosecuted in
good faith and with a reasonable likelihood of success"), rev'd on other grounds, 566 F.2d 3 (CA7 1977);
Kinelow Publishing Co. v. Photography In Business, Inc., 270 F. Supp. 851, 855 (SDNY 1967) (denying fee award to
prevailing defendant because plaintiff 's claims, while "lacking in merit," were not "unreasonable or capricious"); Burnett v. Lambino, 206 F. Supp. 517, 518519 (SDNY 1962) (granting fee award to
prevailing defendant where "asserted claim of infringement was so demonstrably lacking in merit that
bringing it was clearly unreasonable"); Cloth v. Hyman, supra, at 193 (noting that it is proper to award fees
when a copyright action is brought in bad faith, with a motive to "vex and harass the defendant," or where
plaintiff 's claim utterly lacks merit); Loews, Inc. v. Columbia Broadcasting System, Inc., 131 F. Supp. 165, 186 (SD
Cal. 1955) (denying prevailing defendant fee award where question presented in the case "was a nice one,"
and there are "no authorities squarely in point to guide the litigants or their counsel"), aff 'd, 239 F.2d 532
(CA9 1956), aff 'd, 356 U. S. 43 (1958); Krafft v. Cohen, 38 F. Supp. 1022, 1023 (ED Pa. 1941) (denying fee
award to prevailing defendant where claim brought "in good faith," and evidence demonstrated
appropriation); Lewys v. O'Neill, 49 F.2d, at 618 (awarding fees to prevailing defendant because plaintiff 's
case was "wholly synthetic").
- That court concluded that "the considerations prompting an award of
fees to a successful plaintiff must of necessity differ from those determining whether a prevailing defendant
is entitled to such an award." Breffort, 271 F. Supp., at 627. As support, the court stated: "The purpose of an
award of counsel fees to a plaintiff is to deter copyright infringement…. In the case of a prevailing defendant,
however, prevention of infringement is obviously not a factor; and if an award is to be made at all, it
represents a penalty imposed upon the plaintiff for institution of a baseless, frivolous, or unreasonable suit,
or one instituted in bad faith." Ibid. As we have already explained, supra, at 527, such is too narrow a view of
the purposes of the Copyright Act because it fails to adequately consider the important role played by
copyright defendants. See also [510 U.S. 517, 533] Cohen v.
Virginia Electric & Power Co., 617 F. Supp., at 621622 (tracing the evolution of the Second Circuit's
dual standard rule and concluding that earlier cases upon which it supposedly rests do not require bad faith or
frivolousness "[the dual standard rule] is the culmination of a long line of bootstrapping from
nothing to something").
- Some courts following the evenhanded standard have suggested several
nonexclusive factors to guide courts' discretion. For example, the Third Circuit has listed several
nonexclusive factors that courts should consider in making awards of attorney's fees to any prevailing party.
These factors include "frivolousness, motivation, objective unreasonableness (both in the factual and in the
legal components of the case) and the need in particular circumstances to advance considerations of
compensation and deterrence." Lieb v. Topstone Industries, Inc., 788 F.2d 151, 156 (1986). We agree that such
factors may be used to guide courts' discretion, so long as such factors are faithful to the purposes of the
Copyright Act and are applied to prevailing plaintiffs and defendants in an evenhanded manner.
Justice Thomas, concurring in the judgment.
[510 U.S. 517, 535] In my view, the Court's opinion is flatly
inconsistent with our statutory analysis in Christiansburg Garment Co. v. EEOC, 434 U. S. 412 (1978). Because I
disagree with that analysis, however, and because I believe the Court adopts the correct interpretation of the
statutory language at issue in this case, I concur in the judgment.
In Christiansburg, the Court interpreted the attorney's fee provision of Title VII of the Civil Rights Act of
1964, which states that "the court, in its discretion, may allow the prevailing party… a reasonable
attorney's fee… as part of the costs…." 42 U.S.C. § 2000e5(k) (1988 ed., Supp. III). In this
case, the Court construes the attorney's fee provision of the Copyright Act of 1976, which states that "the
court may… award a reasonable attorney's fee to the prevailing party as part of the costs." 17 U.S.C.
§ 505. As the Court observes, the two provisions contain "virtually identical language." Ante, at 522. After
today's decision, however, they will have vastly different meanings.
Under the Title VII provision, a prevailing plaintiff "ordinarily is to be awarded attorney's fees in all but
special circumstances," Christiansburg, 434 U. S., at 417, whereas a prevailing defendant is to be awarded fees
only "upon a finding that the plaintiff 's action was frivolous, unreasonable, or without foundation," id., at
421. By contrast, under the Court's decision today, prevailing plaintiffs and defendants in the copyright
context "are to be treated alike," and "attorney's fees are to be awarded to prevailing parties only as a matter
of the court's discretion." Ante, at 534.
Interestingly, the Court does not mention, let alone discuss, Christiansburg's statutory analysis. We began that
[510 U.S. 517, 536] analysis by considering the Christiansburg
"Relying on what it terms ' the plain meaning of the statute,' [petitioner] argues that the language of
[the attorney's fee provision] admits of only one interpretation: 'A prevailing defendant is entitled to an
award of attorney's fees on the same basis as a prevailing plaintiff.'" 434 U. S., at 418.
We summarily rejected this contention, stating that "the permissive and discretionary language of the
statute does not even invite, let alone require, such a mechanical construction." Ibid. We opined that the
language "provide[s] no indication whatever of the circumstances under which either a plaintiff or a
defendant should be entitled to attorney's fees." Ibid. (emphasis deleted). Turning to the "equitable considerations" embodied in the statute's policy objectives and legislative history, id., at 418420, we stated
that those considerations counseled against petitioner's position a position we concluded was
"untenable," id., at 419.
Today, confronting a provision "virtually identical" to that at issue in Christiansburg, the Court adopts
precisely the interpretation that Christiansburg rejected as "mechanical" and "untenable." The Court states that
"the plain language of § 505 supports petitioner's claim for disapproving the dual standard," ante, at 533, and
that the language "gives no hint that successful plaintiffs are to be treated differently from successful
defendants," ante, at 522. Thus, the Court replaces the "dual" standard adopted by the Ninth Circuit with an
"evenhanded" approach, under which district courts will apply the same standard to prevailing plaintiffs and
defendants when deciding whether to award fees. Ante, at 534 535, and n. 19.
It is difficult to see how the Court, when faced with "virtually identical" language in two provisions, can
hold that a given interpretation is required by the "plain language" in [510 U.S.
517, 537] one instance, but reject that same interpretation as "mechanical" and "untenable" in
the other. After today's decision, Congress could employ the same terminology in two different attorney's
fee statutes, but be quite uncertain as to whether the Court would adopt a "dual" standard (that is, reject the
"mechanical" construction) or apply an "even-handed" rule (that is, adopt the "plain meaning").
Such an inconsistent approach to statutory interpretation robs the law of "the clarity of its command and the
certainty of its application." Doggett v. United States, 505 U. S. 647, 669 (1992) (Thomas, J., dissenting). Indeed,
we repeatedly have sought to avoid this sort of inconsistency in our fee award decisions. See, e. g., Burlington v.
Dague, 505 U. S. 557, 562 (1992) ("case law construing what is a 'reasonable' fee applies uniformly to all" fee-shifting statutes using the term); Ruckelshaus v. Sierra Club, 463 U. S. 680, 691 (1983) ("similar attorney's fee
provisions should be interpreted pari passu"); Hensley v. Eckerhart, 461 U. S. 424, 433, n. 7 (1983) (the
standards "set forth in this opinion are generally applicable in all cases in which Congress has authorized an
award of fees to a 'prevailing party'"). See also Flight Attendants v. Zipes, 491 U. S. 754, 758, n. 2 (1989) ("fee-shifting statutes' similar language is 'a strong indication' that they are to be interpreted alike"); Northcross v. Board of Ed. of Memphis City Schools, 412 U. S. 427, 428 (1973) (per curiam) ("[S]imilarity of language… is, of course, a strong indication that… two [attorney's fee] statutes should be interpreted pari passu").
The Court recognizes the general principle that similar fee provisions are to be interpreted alike, ante, at 523,
but states that the principle does not govern this case because the factors that guided our interpretation in
Christiansburg the policy objectives and legislative history of the statute do not support the
adoption of a "dual" standard in this context. See ante, at 522525. The Court's analysis, however,
rests on the mistaken premise a premise implicit in Christians- [510 U.S.
517, 538] burg that whether we construe a statute in accordance with its plain meaning
depends upon the statute's policy objectives and legislative history. Although attorney's fee provisions may
be interpreted "in light of the competing equities that Congress normally takes into account," Zipes, supra, at
761, those "equities" cannot dictate a result that is contrary to the statutory language. "Our task is to apply
the text, not to improve upon it." Pavelic & LeFlore v. Marvel Entertainment Group, Div. of Cadence Industries
Corp., 493 U. S. 120, 126 (1989). When the text of the statute is clear, our interpretive inquiry ends. See
Connecticut Nat. Bank v. Germain, 503 U. S. 249, 254 (1992). The Court goes astray, in my view, by attempting
to reconcile this case with Christiansburg. Rather, it should acknowledge that Christiansburg mistakenly cast
aside the statutory language to give effect to equitable considerations.
I concur in the judgment, however, because I believe the Court adopts the correct interpretation of the
statutory language in this case. As the Court observes, the language of 17 U.S.C. § 505 gives no indication
that prevailing plaintiffs and defendants are to be treated differently. See ante, at 522, 533. In addition, as the
Court states, the use of the word "may" suggests that the determination of whether an attorney's fee award is
appropriate is to be left to the discretion of the district courts. Ante, at 533. This conclusion finds further
support in the full text of § 505, which provides that "the court in its discretion may allow the recovery of full
costs…. [T]he court may also award a reasonable attorney's fee to the prevailing party as part of the
costs." (Emphasis added.)
Because considerations of stare decisis have "special force" in the area of statutory interpretation, Patterson v. McLean Credit Union, 491 U. S. 164, 172 (1989), I might be hesitant to overrule Christiansburg and other cases in which we have construed similar attorney's fee provisions to impose a "dual" standard of recovery. See, e. g., Hensley, supra, at [510 U.S. 517, 539] 429, and n. 2 (42 U.S.C. §
1988 (1988 ed., Supp. III)); Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U. S. 711, 713, n.1 (1987) (42 U.S.C. § 7604(d)). But while stare decisis may call for hesitation in overruling a dubious
precedent, "it does not demand that such a precedent be expanded to its outer limits." Helling v. McKinney,
509 U. S. 25, 42 (1993) (Thomas, J., dissenting). I would therefore decline to extend Christiansburg's analysis to other contexts. Because the Court at least in result, if not in rationale refuses to make such
an extension, I concur in the judgment.