Thursday, August 04, 2005

Attorneys Fees

The availability of attorneys fees has been an important, lurking issue in all of the registration issues raised in previous postings. As a private practitioner faced with a mortgage and educational costs times 2 for almost 20 more years, it is an issue near and dear to my heart, and one I have direct experience with on a daily basis. It is also a policy issue though too since there is no question that the availability - or not- of such fees impacts significantly on the number of copyright suits brought. When I was counsel to the House of Representatives IP subcommittee, the 1993 Copyright Reform Act's provisions on registration were an effort to level a playing field tilted strongly against individual authors, a problem that remains today. Individual authors have the most need of at least the theoretical availability of attorneys fees; their unavailability acts as a serious impediment to bringing meritorious claims.

Of course, individuals also bring a lot of frivolous suits, and Tuesday's posting was about one of them. One policy approach, then, would be to deny all attorneys fees, and this is, in fact the prevailing "American rule" (contrasted with the "British rule" where prevailing plaintiffs almost automatically get their fees awarded). The countervailing policy is one where private parties act as "private attorney generals" vindicating the purposes of the Act that Congress has passed.

The British rule used to be followed in some circuits before Fantasy v. Fogerty, 510 U.S. 517 (1994)(The link here is to Columbia's awesome Music Plagiarism Project which has not only the opinion, but recordings of the works in the suit, and the score, along with commentary), levelled the playing field by mandating even handed treatment (while not dictating what that treatment is). Fantasy was the perfect case to deal with the matter since it was the author, rock musician John Fogerty (formerly of Creedence Clearwater Revival) who was sued for copyright infringement by the record label to whom he had earlier transferred rights in a song called "Run Through the Jungle". Attorneys fees served there to permit a defendant to fight against a meritless suit.

Sometimes contingency fee arrangements are entered into (only on plaintiff's side, obviously), and on August 2d, in King v. Fox the Second Circuit (per then District Judge, later Attorney General Michael Mukasey), addressed a dispute between members of the band Lynyrd Skynyrd over royalties. The plaintiff was a band member, Edward King. The defendant was his lawyer, Lawrence Fox. Fox was a personal injury lawyer and had no experience with entertainment law. Fox was, though, quite familiar with contingency arrangements and he entered into one with King for the typical one-third recovery. A settlement was reached but King balked at Fox's one-third share of the recovery. King then filed a complaint against Fox alleging various state claims.

I won't go into the details, but only point out that no matter the arrangement, attorney's fees are a very significant part of litigation, both in bringing the suit, and in client-attorney relations. As in most disputes over money, usually both sides lose.

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