Objective Reasonableness Can Be Central To Fee-Shifting Analysis In Copyright Cases

In Kirtsaeng v. John Wiley & Sons, Inc., the Supreme Court clarified the test for awarding attorney's fees when applying the Copyright Act's discretionary fee-shifting provision, 17 U.S.C. § 505. The Court held that the objective reasonableness of a losing party's position should be given "substantial weight"—but not necessarily control—the outcome of a fee petition.  The lower courts had varied considerably in their approach to the discretionary fee-shifting analysis.  Although the regional circuits had developed analyses that typically applied the non-exclusive factors outlined in Fogerty v. Fantasy, 510 U.S. 517 (1994), including frivolousness, motivation, objective unreasonableness, and compensation and deterrence, the courts weighed those factors differently, resulting in different fee-award outcomes. This case provides long-awaited guidance on the test for awarding fees in copyright cases, articulating an analysis similar to the discretionary