The Copyright Act provides that a district court, in its discretion, “may award a reasonable attorney’s fee to the prevailing party.” On June 16, in Kirtsaeng v. John Wiley & Sons, the Supreme Court of the United States clarified that courts “should give substantial weight to the objective reasonableness of the losing party’s position” but also take into account all other relevant factors.

The Supreme Court previously addressed this issue in Fogerty v. Fantasy, Inc. in 1994. There, it noted that district courts should analyze “several nonexclusive factors,” including the frivolousness of the case, the losing party’s motivation, the objective unreasonableness of the case, and considerations of compensation and deterrence. Circuit Courts of Appeal have also awarded attorney’s fees.

The Supreme Court’s ruling confirms that a district court should look at all of these factors but give substantial weight to the objective reasonableness of the positions taken by the losing party. The Court further advised that each of these factors should be applied faithfully to the purposes of the Copyright Act, which aims to encourage and reward authors’ creations while also enabling others to build on that work.

Since the lower court addressed only the reasonableness of the losing party’s claims and ignored the remaining factors, the judgment of the Court of Appeals for the Second Circuit was vacated and the case remanded. This decision sends a message to litigants in copyright cases that lower courts are more likely to respond to a losing party’s unreasonable positions with an award of attorney’s fees unless other factors suggest a different result.