Tuesday, April 15, 2014

Class 29: Remedies


In the last several classes, we've learned about the requirements of an infringement claim.

In Classes 24, 25, and 26, we learned that a plaintiff alleging copyright infringement must prove primary infringement by showing: 1) ownership; 2) copying; and 3) improper appropriation. In other words, plaintiff must own a valid copyright, defendant must have copied plaintiff's work, and the two works must be substantially similar.

In Class 27, we learned that a plaintiff who proves primary infringement can also prove secondary infringement by showing contributory or vicarious infringement. A defendant who induces or knowingly enables a primary infringement is liable for contributory infringement. And a defendant who supervises and benefits from a primary infringement is liable for vicarious infringement.

And in Class 28, we learned about limitations on primary and secondary infringement by online service providers. We learned that online service providers that enable primary infringement may be liable for contributory or vicarious infringement. But we also learned that the Digital Millennium Copyright Act creates a safe harbor for online service providers that enable primary infringement, but also enable copyright owners to identify and object to those infringements.

In this class, we will learn about remedies for primary and secondary copyright infringement. Specifically, we will learn about injunctions, actual damages, statutory damages, and attorney's fees.

Injunctive Relief

Under Section 502 of the Copyright Act, a district court may grant temporary or final injunctions to prevent copyright infringement:
Any court having jurisdiction of a civil action arising under this title may, subject to the provisions of section 1498 of title 28, grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.
17 U.S.C. § 502(a).

As a result, district courts may offer several different forms of injunctive relief to copyright owners, including:
  1. preliminary injunctions
  2. permanent injunctions
  3. impoundment and disposition

While injunctive relief is discretionary, courts tend to grant injunctions against allegedly infringing activity if the copyright owner can show a likelihood of irreparable harm and timely enforcement of the copyright.

Preliminary Injunctions

While different courts apply slightly different tests, as a general rule, courts will grant a preliminary injunction against allegedly infringing activity if the copyright owner shows: 1) a possibility of irreparable injury; and 2) a likelihood of success on the merits:
In order to succeed on a motion for a preliminary injunction, a party must show (a) irreparable harm should the injunction not be granted, and (b) either (i) a likelihood of success on the merits or (ii) sufficient serious question going to the merits and a balance of hardships tipping decidedly in the movant's favor.
Paramount Pictures Corp. v. Carol Publishing Group, 11 F. Supp. 2d 329, 332 (S.D.N.Y. 1998).

Most courts hold that a prima facie case of infringement creates a rebuttable presumption of irreparable injury. "As to irreparable harm, generally when a copyright plaintiff makes out a prima facie showing of infringement, irreparable harm may be presumed." ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60, 64 (2d Cir. 1996).

In theory, the presumption of irreparable harm is rebuttable. But in practice, it can be rebutted only in unusual circumstances. For example, defendants have rebutted the presumption of irreparable harm by showing that plaintiff intentionally delayed enforcement of its rights, that plaintiff's harm was de minimis, or that defendant lacked scienter.

In certain circumstances, courts may also consider the public interest. In other words, they may consider whether issuing an injunction to protect the plaintiff from irreparable harm would inflict harm on the public interest. For example, courts might consider whether issuing an injunction would harm the economy, or prevent the use of a new technology.

Permanent Injunctions

Courts may also grant permanent injunctions, if the copyright owner shows a possibility of ongoing infringement. Under Federal Rule of Civil Procedure 65, a permanent injunction must:
(A) state the reasons why it issued;
(B) state its terms specifically; and
(C) describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required.
Fed. R. Civ. P. 65(d).

Until recently, courts generally granted permanent injunctions on a final judgment of infringement. However, they have begun to reconsider permanent injunctions in cases where the likelihood of future infringement is low or a permanent injunction would harm the public interest.


  1. Should courts grants injunctions for copyright infringement? Why or why not?
  2. Should courts presume irreparable harm on the basis of a copyright infringement? Why or why not?
  3. How should the public interest affect the court's decision whether to grant an injunction?

Impoundment and Disposition

Courts can also order the impoundment and disposition of defendant's infringing copies and any machines used to make those copies. Section 503 of the Copyright Act provides:
(1) At any time while an action under this title is pending, the court may order the impounding, on such terms as it may deem reasonable— 
(A) of all copies or phonorecords claimed to have been made or used in violation of the exclusive right of the copyright owner; 
(B) of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced; and 
(C) of records documenting the manufacture, sale, or receipt of things involved in any such violation, provided that any records seized under this subparagraph shall be taken into the custody of the court. 
(2) For impoundments of records ordered under paragraph (1)(C), the court shall enter an appropriate protective order with respect to discovery and use of any records or information that has been impounded. The protective order shall provide for appropriate procedures to ensure that confidential, private, proprietary, or privileged information contained in such records is not improperly disclosed or used. 
(3) The relevant provisions of paragraphs (2) through (11) of section 34(d) of the Trademark Act (15 U.S.C. 1116 (d)(2) through (11)) shall extend to any impoundment of records ordered under paragraph (1)(C) that is based upon an ex parte application, notwithstanding the provisions of rule 65 of the Federal Rules of Civil Procedure. Any references in paragraphs (2) through (11) of section 34(d) of the Trademark Act to section 32 of such Act shall be read as references to section 501 of this title, and references to use of a counterfeit mark in connection with the sale, offering for sale, or distribution of goods or services shall be read as references to infringement of a copyright. 
(b) As part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all copies or phonorecords found to have been made or used in violation of the copyright owner’s exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced.
17 U.S.C. § 503.

In other words, courts may authorize impoundment, confiscation, and destruction of any infringing copies of plaintiff's work, as well as anything used to make those copies. In addition, courts may impound, confiscate, and destroy lawfully reproduced and acquired copies of a work, if those copies are used for infringing purposes, like public performance or display.

  1. Courts generally disfavor the destruction of impounded goods. Why?
  2. Plaintiffs may prefer the destruction of impounded goods. Why?

Under Section 504 of the Copyright Act, an copyright infringer is liable for either actual damages or statutory damages:
(a) In General.— Except as otherwise provided by this title, an infringer of copyright is liable for either— 
(1) the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection (b); or 
(2) statutory damages, as provided by subsection (c).
17 U.S.C. § 504.

In other words, copyright owners can recover either the actual damages caused by the infringement or a fixed amount of damages determined by the Copyright Act.

Actual Damages

Under Section 504 of the Copyright Act, copyright owners can recover their actual damages and any additional profits earned by the infringer:
(b) Actual Damages and Profits.— The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.
17 U.S.C. § 504.

In other words, plaintiffs who recover actual damages are entitled to either their own lost profits or the defendant's profits, but not both, except to the extent that the infringement injured the plaintiff in a way not reflected in sales. For example, assume that Acme Inc. owns a copyright in work A and profits $1 million annually. Beta Inc. creates work B, which infringes work A. In 2010, Acme profits $500,000 from work A and Beta profits $300,000 from work B. In general, Acme can recover either its own $500,000 in lost profits or Beta's $300,000 in profits. However, if Acme can show that it was damaged by the infringement in some way other than lost profits, it can also recover those additional damages. For example, if work B is an inferior product that tarnishes the appeal of work A, Acme could recover the value of the tarnishment.

The plaintiff has the burden of proving actual damages, which cannot be unduly vague or speculative. Different courts have required different degrees of certainty of actual damages. Some require the plaintiff to prove the extent of actual damages, while others impose a lower burden on the plaintiff, once infringement is established.

Proving lost profits is difficult, so most plaintiffs elect to recover defendant's profits. A plaintiff who recovers defendant's profits "is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work." 17 U.S.C. § 504.

In other words, the plaintiff only has to prove the defendant's total revenue, and the defendant bears the burden of showing how much of that revenue was profit from the infringing work. Defendants can deduct expenses incurred in the creation and sale of the infringing work, and can deduct revenues generated from sources other than the infringing work. For example, defendant could show that the infringing work was only one element of a compilation. Or defendant could show that the infringing work has non-infringing elements that increased its value.


  1. The 1909 Act allowed plaintiff to recover both lost profits and defendant's profits. Why would the 1979 Act force plaintiffs to choose one or the other?
  2. Why does the Act require plaintiffs to prove actual damages, but defendants to prove expenses and apportionment?
  3. Smith owns the copyright in song A, which generates $1 million in profits per year. In 2010, Jones creates song B. Smith files an infringement action against B and proves that the melody of song B infringes the melody of song A. In 2010, song A generates $500,000 in profits and song B generates $1 million in revenue. What kind of actual damages should Smith request? How should Jones respond?

Statutory Damages

Under Section 504 of the Copyright Act, plaintiffs who have registered their works are entitled to recover statutory damages, rather than actual damages:
(c) Statutory Damages.— 
(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work. 
(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: 
(i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or 
(ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in section 118 (f)) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work. 
(A) In a case of infringement, it shall be a rebuttable presumption that the infringement was committed willfully for purposes of determining relief if the violator, or a person acting in concert with the violator, knowingly provided or knowingly caused to be provided materially false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering, maintaining, or renewing a domain name used in connection with the infringement. 
(B) Nothing in this paragraph limits what may be considered willful infringement under this subsection. 
(C) For purposes of this paragraph, the term “domain name” has the meaning given that term in section 45 of the Act entitled “An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes” approved July 5, 1946 (commonly referred to as the “Trademark Act of 1946”; 15 U.S.C. 1127).
17 U.S.C. § 504.

So, plaintiffs can elect to recover either actual damages or statutory damages. Congress created statutory damages in order to ensure that copyright owners could afford to file infringement actions. Often, actual damages are small and difficult to prove. In the absence of statutory damages, many copyright owners would not be able to file meritorious infringement actions.

Notably, copyright owners generally can elect to recover statutory damages only if they register their work before it is infringed:
In any action under this title, other than an action brought for a violation of the rights of the author under section 106A (a), an action for infringement of the copyright of a work that has been preregistered under section 408 (f) before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement, or an action instituted under section 411 (c), no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for—
(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or
(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.
17 U.S.C. § 412.

When a plaintiff elects to recover statutory damages, courts must determine the size of the award, which depends on the award per infringement and the number of works infringed.

Normally, the award per infringement may range from $750 to $30,000, but it may be increased to $150,000 in the case of willful infringement. While the Copyright Act does not define "willful infringement," courts have tended to find willful infringement when defendant knew that it was infringing or had a pattern of infringing. Notably, courts may reduce a statutory damages award to $200 in the case of innocent infringers, or eliminate it entirely in the case of certain nonprofit employees.

In addition, plaintiffs can recover only one statutory damage award per defendant per work infringed, although the size of the award may depend on the number of infringements. However, if the defendant infringes more than one work, the court must award at least the statutory minimum per work infringed, which quickly adds up, so the number of works infringed is important.

Notably, plaintiffs can recover only one statutory damages award per plaintiff, so if there are multiple copyright owners, they must split the statutory damages award. But defendants can recover statutory damages from each defendant, so if ten defendants infringe, plaintiffs can recover statutory damages from all ten.


  1. Congress created statutory damages in order to ensure that copyright owners could file infringement actions. How do you think they affected defendants?
  2. Statutory damages may range from $750 to $150,000. How might that affect defendants?

Costs and Attorney's Fees

The Copyright Act provides that courts may award costs and attorney's fees to prevailing parties, in certain circumstances:
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. However, copyright owners may recover attorney's fees only if their copyright is registered. 17 U.S.C. § 412.

In other words, both plaintiffs and defendants may recover costs and attorney's fees, at the discretion of the court. Until recently, court generally awarded attorney's fees to prevailing plaintiffs, but awarded attorney's fees to prevailing defendants only if the infringement action was frivolous or brought in bad faith.

Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. 
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." 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." 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., sued Fogerty, Warner Brothers, and affiliated companies in District Court, alleging that "The Old Man Down the Road" was merely "Run Through the Jungle" with new words. 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. 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 or brought in bad faith. 
In contrast, some Courts of Appeals follow the so-called "evenhanded" approach in which no distinction is made between prevailing plaintiffs and prevailing defendants. 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 evenhanded 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. We reverse. 
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. § 2000e-5(k). We had earlier held, interpreting the cognate provision of Title II of that Act, 42 U. S. C. § 2000a-3(b), that a prevailing plaintiff "should ordinarily 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. 
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. 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 524*524 can be awarded to or against 'the United States or an officer thereof.'" H. R. Rep. No. 94-1476, p. 163 (1976). 
See also S. Rep. No. 94-473, 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, 107-108, and nn. 1, 2 (1992). 
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 622-623. 
We thus conclude that respondent's argument based on our fee-shifting decisions under the Civil Rights Act must fail. 
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. 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 526*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 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, 349-350 (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." (Citations omitted.) 
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 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 40-45. 
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 530-531 (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. This 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 workings of the 1909 Copyright Act. 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. 
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 to prevailing defendants based on a finding of frivolousness or bad faith, not all courts expressly described the test in those terms. 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). This is hardly the sort of uniform construction that Congress might have endorsed. 
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 British Rule. 
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, 247-262 (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 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, 436-437 (1983). Because the Court of Appeals erroneously held petitioner, the prevailing defendant, to a more stringent standard than that applicable to a prevailing plaintiff, its judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. 
It is so ordered.

Creedence Clearwater Revival, Run Through the Jungle (1970)

John Fogerty, The Old Man Down the Road (1984)


  1. Why did Congress authorize courts to award costs and attorney's fees to prevailing parties?
  2. How should that affect how courts exercise their discretion to award costs and attorney's fees?

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