Defendant’s Attorney’s Fees Awarded After Successfully Defending Against Infringement Claim

he American Society of Composers, Authors, and Publisher’s (“ASCAP”) successfully defended against a claim of copyright infringement asserted by Latin American Music Company (“LAMCO”) and, as a result, was awarded over $82,000 in attorney’s fees and costs. The U.S. Court of Appeals for the First Circuit stated that the Copyright Act did not prohibit the recovery of attorney’s fees in a case of non-infringement where the defendant prevails against the assertion.

LAMCO, a music publishing company based in New York, claimed that ASCAP along with other defendants, infringed their rights in over 500 music compositions. As ASCAP, successfully defended against the case by jury verdict, they moved for and were awarded attorney’s fees. LAMCO promptly appealed the decision.

At heart of their argument LAMCO referenced Section 412 of the Copyright Act. They claimed the disputed song “Caballo Viejo” was not timely registered, therefore recovery of attorney’s fees was prohibited as a matter of law. However, this argument fails on its merits because it is impossible for a defendant to comply with this requirement as it applies to plaintiffs asserting their copyrights, not those defending against infringement.

The ramifications of this case could elicit a demand for changes in the law to prevent all defendants from moving for the Court to grant attorney’s fees when they successfully defend against an infringement claim. As the award of attorney’s fees shifts to the prevailing party in Copyright Law, this case serves as a reminder for potential plaintiffs that their costs could be beyond what they anticipated if they are not the prevailing party. Let the plaintiff beware.