Michael Skidmore, trustee for the Randy Craig Wolfe Trust, sued Led Zeppelin, the band’s surviving members, Super Hype Publishing, Inc., and Warner Music Group Corp., claiming that the song “Stairway to Heaven” infringed the song “Taurus” by the rock band Spirit, of which Wolfe was a member. After prevailing at trial, the defendants sought nearly $800,000 in attorney’s fees and costs.
In determining whether to award fees in copyright cases, the Ninth Circuit considers (1) the degree of success obtained on the claim, (2) frivolousness, (3) motivation, (4) objective reasonableness of factual and legal arguments, and (5) need for compensation and deterrence. The Ninth Circuit also considered litigation misconduct, an additional factor that the U.S. Supreme Court suggested as a potential factor in the attorney’s fees analysis for copyright cases in its 2016 decision in Kirtsaeng v. John Wiley & Sons, Inc.
The district court ruled that both the frivolousness and objective reasonableness factors weighed in favor of Skidmore because the copyright infringement claim survived a motion for summary judgment, the jury found that the plaintiff owned the copyright in “Taurus” and Skidmore demonstrated that the defendants had access to the work. Moreover, the “motivation” factor also weighed in favor of the plaintiff because Skidmore maintained that the purpose of the lawsuit was to secure credit for Wolfe, the author of “Taurus”, and offered evidence that Wolfe considered filing an infringement suit over “Stairway to Heaven” before his death.
On the other hand, the degree of success factor undisputedly weighed in favor of the defendants, given that the defendants prevailed at trial on all claims. The need for compensation and deterrence factor weighed “slightly in favor” of defendants, said the district court, because while the defendants were forced to bear their own costs after their insurer denied coverage for their stale claims (thus establishing need for compensation), there was no need for deterrence because the suit was not filed in bad faith. Finally, the district court held that the litigation misconduct factor weighed in favor of the defendants, describing Skidmore’s counsel’s “antics” as “demonstrat[ing] a tenuous grasp of legal ethics and a rudimentary understanding of courtroom decorum.” By way of example, the district court noted an incident where Skidmore’s counsel mentioned the defendants’ unclean hands defense and “then waved his hands in the air” and instructed Skidmore to “‘[p]lease show the jury your hands,’ as if a showing of manicured fingers would rebut the equitable defense of unclean hands.” The district court also pointed out that “[m]ere minutes” after it ordered the exclusion of evidence about the charitable nature of the Wolfe trust, the plaintiff’s counsel “brazenly appeared before television cameras” and violated the court order.
The district court concluded that two factors (litigation misconduct and degree of success) solidly favored the defendants, and a third factor (need for compensation) slightly favored the defendants. On the other hand, three factors (motivation, frivolousness, and objective reasonableness) weighed strongly in the plaintiff’s favor. Accordingly, the district court denied the defendants’ motion for attorney’s fees and costs.