The last time the U.S. Supreme Court tackled the issue of attorneys’ fees under the Copyright Act was in  Fogerty v. Fantasy.  In that case, John Fogerty was sued for alleged copyright infringement over his song “The Old Man Down the Road.” The jury sided with Fogerty, but the trial court denied him fees because Fantasy’s copyright claims were not, well, fantasy.  At the time, many lower courts embraced the so-called “dual approach” to awarding fees whereby prevailing plaintiffs were typically entitled to fees, whereas successful defendants had to show the copyright claims were frivolous. The Supreme Court rejected the “dual approach” to awarding fees under the Act and held that prevailing plaintiffs and prevailing defendants are to be treated alike for purposes of an award of fees.

The Court’s pronouncement in Fogerty did not exactly lead to sweet harmony throughout the land. Some courts (like the Fifth and Seventh Circuits) adopted a presumption in favor of fee awards to the prevailing party. Other courts (such as the Second Circuit) embraced a presumption against fee awards unless the losing party’s claims or defenses were “objectively unreasonable.”

In order to address this disturbance in the force, yesterday the Court granted cert in John Wiley & Sons, Inc. v. Kirtsaeng.  This is the second time this dispute has landed at the Supreme Court.  Kirtsaeng prevailed the first time when the Court held the Copyright Act did not prohibit Kirtsaeng from importing into the U.S. Wiley’s foreign-manufactured textbooks. On remand, the trial court denied Kirtsaeng an award of fees. The Second Circuit affirmed the denial, thereby setting the stage for another Supreme Court showdown.

The precise question posed by Kirtsaeng’s petition is: What is the appropriate standard for awarding attorneys’ fees to a prevailing party under § 505 of the Copyright Act?  We will know soon enough and will keep you posted here at TheTMCA.com.