Forum on Attorney's Fees in Copyright Infringement Cases: Are We Running Through the Jungle or is the Old Man Still Stuck Down the Road?

Abstract

TO SUBSCRIBE TO THE WILLIAM & MARY LAW REVIEW: Contact the Managing Editor, the William & Mary Law Review, William and Mary School of Law, P.O. Box 8795, Williamsburg, VA 23187-8795.This Forum on Attorney's Fees analyzes the Supreme Court's recent *Fogerty v. Fantasy* decision, to determine whether it indeed has had the impact that it set for itself of altering the way fees are awarded in copyright infringement cases. Taking their cues from the two John Fogerty songs at issue there, the panelists argue the pro and con. David Nimmer claims that the Old Man Is Stuck Down the Road. Although *Fogerty* claimed that it was making the playing field more even for the award of fees, any impact that it has had is a fantasy; instead, the traditional norms of fault-based awards are simply continuing on their merry way. Paul Marcus disagrees. Maintaining that we are now Running Through the Jungle, he claims that *Fogerty* has fundamentally altered the landscape for the award of fees in infringement suits -- witness the $1 million award to Fogerty himself, dwarfing any previous attorney fee award in the copyright arena.The forum is moderated by Eaton S. Drone, late author of a 19th Century classic on copyright law, who has contributed his insights by e-mail from the great beyond.