A federal court can order the losing side to pay the winner’s attorney fees in a copyright case, but nothing about that award is automatic. Under 17 U.S.C. § 505, a judge has broad discretion to grant or deny fees to whichever party prevails. Before that discretion even comes into play, the copyright generally must have been registered on time, and the winning party has to satisfy several other conditions that decide most fee fights before the judge weighs the equities.
Register Before the Infringement, or Lose the Fee Remedy
The single biggest barrier to recovering attorney fees has nothing to do with the strength of your case. Under 17 U.S.C. § 412, you cannot recover attorney fees or statutory damages for infringement of a published work unless the copyright was registered before the infringement began or within three months of the work’s first publication.1Office of the Law Revision Counsel. 17 U.S. Code 412 – Registration as Prerequisite to Certain Remedies for Infringement For unpublished works, registration must predate the infringement entirely. There is no grace period.
This is where most fee claims die quietly. A photographer discovers unauthorized use six months after publication, registers the copyright, sues, and wins. But she walks away with only actual damages and no fees, because registration came too late. The Copyright Office charges $45 for a single-author basic claim and $65 for a standard electronic application.2U.S. Copyright Office. Fees That is a small cost to keep the door to fee-shifting open.
Who Counts as the Prevailing Party
Only a “prevailing party” can recover fees under § 505.3Office of the Law Revision Counsel. 17 U.S. Code 505 – Remedies for Infringement: Costs and Attorneys Fees That term has a specific meaning: you need a court-sanctioned change in the legal relationship between the parties. A judgment on the merits or a court-approved consent decree qualifies. A private settlement, agreed to voluntarily without court approval, generally does not.4Justia U.S. Supreme Court Center. Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources
Both plaintiffs and defendants can prevail. A plaintiff who proves infringement and obtains damages or an injunction qualifies. So does a defendant who wins dismissal, summary judgment, or a defense verdict at trial. The Supreme Court has been emphatic in Fogerty v. Fantasy, Inc. that the two sides must be treated evenhandedly: a defendant who defeats a weak infringement claim has just as much right to seek fees as a plaintiff who proves copying.5Justia U.S. Supreme Court Center. Fogerty v. Fantasy, Inc. Partial success can be enough if you obtained meaningful relief on a significant part of the case.
How Judges Decide Whether to Award Fees
The statute says a court “may” award fees. The Supreme Court has told judges how to exercise that discretion in two decisions that anchor every fee dispute in federal copyright litigation.
The Fogerty Factors
In Fogerty v. Fantasy, Inc. (1994), the Court identified several nonexclusive considerations: the frivolousness of the losing party’s position, their motivation for bringing or defending the case, the objective unreasonableness of their factual and legal arguments, and whether a fee award would advance copyright law’s goals of compensation and deterrence.5Justia U.S. Supreme Court Center. Fogerty v. Fantasy, Inc. The point is to discourage frivolous claims and meritless defenses while keeping the courthouse open to good-faith disputes. A losing party who raised a plausible but unsuccessful fair use defense, for instance, usually will not face a fee award.
The Kirtsaeng Weight on Objective Reasonableness
In Kirtsaeng v. John Wiley & Sons, Inc. (2016), the Court held that objective reasonableness should carry substantial weight in the analysis. If the losing party’s legal position was objectively reasonable, that weighs heavily against fees. But it is not the only factor. A judge can still shift fees to deter repeated infringement, curb overly aggressive enforcement, or respond to litigation misconduct, even where the losing arguments were not frivolous.6Justia U.S. Supreme Court Center. Kirtsaeng v. John Wiley and Sons, Inc.
Financial disparity sometimes enters the analysis too. There is no formal hardship exemption, but the inquiry is equitable, and some judges hesitate to impose ruinous fees on an individual creator who lost to a corporation. The reverse cuts the other way: when a well-funded party pursues a meritless claim against a smaller defendant, a fee award becomes more likely precisely because the imbalance made the litigation coercive.
What Can Actually Be Recovered
Section 505 authorizes two separate categories: “full costs” and a “reasonable attorney’s fee.” They sound overlapping, but the Supreme Court has drawn a sharp line between them.
The attorney fee award covers time your lawyer spent on the case, and generally includes paralegal and support staff time that contributed meaningfully to the litigation. Courts treat that support work as part of the attorney fee rather than a separate cost.
“Full costs,” by contrast, is far narrower than the phrase suggests. In Rimini Street, Inc. v. Oracle USA, Inc. (2019), the Court held that “full costs” under § 505 covers only the six categories of taxable costs listed in 28 U.S.C. §§ 1920 and 1821: clerk and marshal fees, transcript fees, printing and witness fees, copying costs, docket fees, and court-appointed expert and interpreter fees.7Supreme Court of the United States. Rimini Street, Inc. v. Oracle USA, Inc.8GovInfo. 28 U.S. Code 1920 – Taxation of Costs The statutory witness attendance fee is $40 per day.9Office of the Law Revision Counsel. 28 U.S. Code 1821 – Per Diem and Mileage Generally; Subsistence
Before Rimini Street, some lower courts had awarded broader litigation expenses (e-discovery, jury consultants, retained experts) as “full costs.” The Supreme Court shut that down. An expert witness hired to testify about substantial similarity or damages can easily run tens of thousands of dollars, but only the $40 daily attendance fee is recoverable. The rest stays with the winning party.
How Courts Calculate the Fee Amount
When a court decides to award fees, it uses the lodestar method: hours reasonably spent multiplied by a reasonable hourly rate.10Justia U.S. Supreme Court Center. Blum v. Stenson Both numbers get close scrutiny.
Judges review billing records line by line. Hours get cut for duplicative work, excessive research on settled questions, or vague entries that don’t show what was done. Block-billed time (a single description lumping several hours of tasks) is especially vulnerable to reduction because the court cannot assess whether each task was necessary.
Partial success also matters. In Hensley v. Eckerhart (1983), the Supreme Court held that the degree of success obtained is the most critical factor in the calculation. If you won your core infringement claim but lost several secondary theories, the court may exclude hours spent on the losing claims or reduce the total to reflect the limited outcome.11Justia U.S. Supreme Court Center. Hensley v. Eckerhart
The rate is set by the prevailing market in the jurisdiction where the case was litigated, for attorneys of comparable experience and skill, not by what your lawyer actually billed.10Justia U.S. Supreme Court Center. Blum v. Stenson Courts sometimes reduce requested rates to the local median when a party hired premium counsel for a straightforward dispute, and travel costs for out-of-state lawyers are often disallowed if qualified local counsel could have handled the case.
The 14-Day Deadline to File the Fee Motion
Winning does not leave you with an open-ended window to ask for fees. Under Federal Rule of Civil Procedure 54(d)(2), a motion for attorney fees must be filed within 14 days after entry of judgment, unless a statute or court order sets a different deadline.12Legal Information Institute. Rule 54 – Judgment; Costs Missing that deadline can forfeit an otherwise valid fee claim entirely.
The motion must identify the judgment, cite the fee-shifting statute (§ 505), and state the amount sought or a fair estimate. Courts expect detailed billing records, attorney declarations describing experience and typical rates, and sometimes affidavits from other practitioners confirming that the rates are reasonable for the market. The opposing party can challenge every line item, and judges often refer contested fee petitions to a magistrate for detailed review.
Copyright Claims Board Cases Follow Different Rules
If your dispute is at the Copyright Claims Board rather than in federal district court, § 505 does not govern. Since 2022, the CCB has offered a streamlined alternative for claims of $30,000 or less. There, each side pays its own attorney fees regardless of who wins. Fees shift only if the CCB finds bad-faith conduct, and even then the recovery is capped at $5,000, or $2,500 for costs if you represented yourself.13Copyright Claims Board. Damages Choosing between the CCB and federal court is partly a choice about whether fee recovery is realistic given your position under the Fogerty factors.
Practical Steps to Protect Fee Eligibility
- Register copyrights within three months of first publication, and register unpublished works before sharing them.
- Keep detailed, task-specific billing records from the first hour of the case; vague or block-billed entries get cut.
- Assess honestly whether your position would look objectively reasonable to a judge. That factor now carries the most weight in the analysis, and a case built on shaky ground can end with the other side collecting fees from you.
- Calendar the 14-day post-judgment deadline the moment judgment enters.