Plaintiffs Jonathan Bissoon-Dath and Jennifer Dath brought a copyright infringement suit against Sony Computer Entertainment America Inc. and others, alleging that defendants misappropriated plaintiffs’ original copyrighted works to develop the popular video game God of War. After the Ninth Circuit affirmed the district court’s grant of summary judgment in defendants’ favor and dismissed plaintiffs’ claims in their entirety, defendants moved for an award of attorneys’ fees under the Copyright Act. The court denied the motion, finding that defendants’ complete success in defeating plaintiffs’ claims was not dispositive, and that the remaining factors weighed against awarding defendants attorneys’ fees.
At the outset, the court noted that, under section 505 of the Copyright Act, a district court may award reasonable attorneys’ fees to the prevailing party in a copyright infringement suit. In determining a prevailing party’s entitlement to attorneys’ fees, the Supreme Court has enunciated a number of nonexclusive factors – known as the Fogerty factors – including frivolousness, motivation, objective reasonableness and the need in particular circumstances to advance considerations of compensation and deterrence. In addition to these factors, the Ninth Circuit has added additional factors, including the degree of success obtained, the purposes of the Copyright Act, and whether the chilling effect of attorneys’ fees may be too great or impose an inequitable burden on an impecunious plaintiff.
Defendants argued that they were entitled to attorneys’ fees because they achieved complete success in defeating plaintiffs’ claims. Agreeing that the degree of success obtained is a factor weighing in favor of an award of fees, the court found that this factor is not dispositive. If it were, explained the court, all prevailing parties would be entitled to attorneys’ fees as a matter of course – which is not the law.
In evaluating the other factors, the court first found that plaintiffs’ claims were not objectively unreasonable. A frivolous claims, explained the court, is one in which the factual contention is clearly baseless, such as factual claims that are fantastic or delusional scenarios. While the court found that plaintiffs’ claims lacked merit, it concluded that they do not rise to the level of frivolous. The court rejected defendants’ assertion that plaintiffs knew or should have known that their claims were baseless from a “simple reading” of the works at issue, pointing to its own summary judgment order as evidence that a comparison of the various works at issue was not simple. The court also emphasized that plaintiffs performed their due diligence prior to filing suit. The court also found unpersuasive defendants’ contention that they had warned plaintiffs that their claim lacked merit at the outset by sending plaintiffs a letter that outlined weaknesses in their case. It is neither surprising nor unusual, stated the court, for a party to reject an adversary’s assessment of its case.
The court also found that scant evidence of improper motive. Defendants argued that plaintiffs’ suit was "another in the long line of cases where an aspiring writer comes out of the woodwork with unsupported claims that a successful movie or game copied his unpublished script, in hopes of forcing a [d]efendant to pay a large settlement . . . ." According to the court, the financial success of the God of War franchise and the dismissal of plaintiffs’ claims were not sufficient to establish improper motive, and no evidence existed that plaintiffs sought to publicize the case to gain attention for themselves or their works, or that they sought to enjoin distribution of defendants’ work in order to extract a nuisance settlement. The court also noted that the amount of time and effort plaintiffs devoted to their suit weighed against a finding of bad faith. It is unlikely, stated the court, that plaintiffs would have made such a personal sacrifice if they believed their claims lacked merit.
Finally, the court concluded that awarding defendants attorneys’ fees would not necessarily serve the purpose of the Copyright Act. Holding plaintiffs liable for over a million dollars in attorneys’ fees, reasoned the court, would have a chilling effect on suits that could be brought under the Copyright Act. Individual plaintiffs might be hesitant to bring meritorious infringement claims in the future if they believe that such claims would lead to financial ruin.