A case decided by one of the U.S. Court of Appeals for the 7th Circuit illustrates a dilemma germane to many creatives. The facts are relatively simple. The Plaintiff owned the copyrights to a number of designs for use on t-shirts. The Defendant, without discussing licensing or other such arrangements with the Plaintiff, pirated the designs, using them to produce and sell temporary tattoos. A classic case of copyright infringement. When the Plaintiff learned of the infringement, he sued the Defendant, who promptly stopped producing and selling the tattoos.

Here is where the case becomes interesting. The parties could not agree on a money settlement and the case was submitted to a District Judge. The District Judge awarded the Plaintiff the minimum $750.00 statutory damages for each of the four infringements, a total of $3,000.00. He refused to award attorneys’ fees, even though the Plaintiff requested an award, stating that the Defendant’s actions were willful but were not the kind of flagrant behavior that would justify an award of attorneys’ fees. The Plaintiff appealed. He did not appeal the $750.00 awards, only the refusal to award the attorneys’ fees.

The Court of Appeals noted that the Copyright Act authorizes the award of attorneys’ fees but does not establish a standard for when they should be awarded or for determining an amount. The decision is within the discretion of the District Judge. The Court of Appeals, though, clearly thought that an award was justified in this case, virtually ruling that the District Judge abused his discretion. But it is the Court of Appeals’ language that makes the case so good.

“The fact that the (Defendant) did not persist in its infringing activities after being sued is no doubt a point in its favor, but without amplification is not a strong one. The fact that a criminal does not persist in committing crimes after he’s indicted doesn’t argue strongly in his favor. The infringement was willful; and willful infringements involving small amounts of money cannot be adequately deterred (and remember the need in particular circumstances to advance consideration of … deterrence) without an award of attorneys’ fees.”

And this great commentary:

“No one can prosecute a copyright suit for $3,000. The effect of the district court’s decision, if universalized, would allow minor infringements, though willful, to be committed with impunity, to be in effect privileged, immune from legal address. The smaller the damages, provided there is a real, and especially a willful, infringement, the stronger the case for an award of attorneys’ fees.”

You have to love this Robe. Here was an example of a man whose work was taken by another and whose attorney probably wound up costing him more than he was awarded until the Court of Appeals stepped in. Maybe there is no such thing as inexpensive infringement.

Put more poetically:

The Judge thought the Defendant a leech

And said the law had a lesson to teach

You pay the Plaintiff what’s due

Then pay his lawyers’ fee too

Cause in my court when you lose you pay each