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Harrell v. Van Der Plas, et al.

Court grants a discretionary award of substantial attorney’s fees to plaintiff author in an action for copyright infringement because defendant publishers’ defense was “objectively unreasonable” and an award is consistent with the purpose of the Copyright Act

The plaintiff, Julie Harrell, is the author of the book A Woman’s Guide to Bikes and Biking. The defendants are Robert Van Der Plas, Cycle Publishing and Van Der Plas Publications, who published the original edition of the plaintiff’s book.

In September 2008, the plaintiff sued the defendants for copyright infringement after defendants republished and sold copies of plaintiff’s book after publication rights had reverted to the author. In June 2009, the court entered judgment for the plaintiff in the amount of $7,500 after plaintiff accepted defendants’ Rule 68 offer of judgment, and the court also allowed the plaintiff to move for an award of costs and fees.

In July 2009, plaintiff moved for an award of attorney’s fees in the amount of $76,840, plus costs. Under the Copyright Act, a court may, in its discretion, award attorney’s fees and costs to a prevailing party. In determining whether an award of attorney’s fees is appropriate, courts should consider “frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case)” and the need for additional “compensation and deterrence.”

The defendants argued that the court should not award attorney’s fees because this action was essentially one for breach of contract, not copyright infringement. Alternatively, the defendants argued that the award was inappropriate and excessive.

The court held that an award of attorney’s fees was appropriate. First, several courts have previously rejected attempts to restyle claims for copyright infringement as breach of contract claims. The court stated that it is now settled law that when a party exceeds the scope of its license to use copyrighted material, the appropriate action is one for copyright infringement, not breach of contract. Moreover, a breach of contract action was inappropriate because defendants’ license to publish plaintiff’s book had expired years before the infringing publication.

Second, the court found that it was appropriate to grant attorney’s fees because the defendants had advanced “objectively unreasonable” defenses. Defendants’ defenses were “clearly without merit or otherwise patently devoid of a legal or factual basis.”

The court held that objective reasonableness alone, “without regard to any other equitable factor,” is enough to justify a fee award because it is consistent with the purpose of the Copyright Act. The Copyright Act promotes “the origination of creative works by attaching enforceable property rights to them.” An award of attorney’s fees serves to deter future infringers and allows plaintiffs to enforce their copyright even where the damages are relatively small.

After analyzing the plaintiff’s attorney’s fees, the court reduced the award by 15%, from the $76,840 plaintiff sought to $65,314. A “presumptively reasonable” attorney’s fee award is the number of reasonable hours expended multiplied by a reasonable hourly rate.