Attorney’s Fees in Copyright Infringement: Eligibility, Amount, and Deadlines

In a copyright infringement case, the court can order the losing side to pay the winner’s attorney’s fees under 17 U.S.C. § 505.¹ That breaks from the usual American rule, under which each side pays its own lawyers no matter who wins. Two things have to line up before you can collect: your copyright had to be registered on time, and a judge has to decide, using an evenhanded set of factors, that shifting the fees is appropriate. Both plaintiffs and defendants qualify on identical terms.

The Registration Deadline Decides Whether Fees Are Even Possible

A copyright owner who registers too late loses the right to recover attorney’s fees entirely, no matter how badly the other side behaved. Under 17 U.S.C. § 412, fees are unavailable for infringement of an unpublished work that began before the registration’s effective date. For a published work, the infringement must have started either before first publication or during the three-month grace period after publication, with registration completed inside that window.² Miss the grace period, and if infringement begins afterward, the door to fee recovery is permanently closed on that work.

Courts cannot waive this. An owner who registered late can still sue for actual damages and the infringer’s profits, but the leverage of potential fee-shifting disappears. For most copyright owners, this is the single most consequential decision they will make about a work, and it has to be made before any dispute arises.

The effective date of registration is the day the Copyright Office receives an acceptable application, the required deposit copies, and the filing fee. It is not the day the certificate issues, which can take months.³

Two narrow exceptions preserve fee eligibility outside this timeline. Preregistration under § 408(f) covers certain works vulnerable to pre-release piracy, like motion pictures and music, and keeps fees on the table if the owner later completes full registration within three months of first publication or one month of learning about the infringement, whichever comes first. Works first fixed simultaneously with their broadcast — think live sports or concert feeds — can also qualify through § 411(c).²

Who Counts as the Prevailing Party

Section 505 limits fee awards to the “prevailing party.” The Supreme Court held in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources that a party prevails only when a court formally changes the legal relationship between the litigants, through a judgment on the merits or a court-approved consent decree.⁴ A private settlement, even one that gives you everything you asked for, does not qualify because it lacks what the Court called “judicial imprimatur.”

Defendants qualify on the same footing as plaintiffs. If you defeat an infringement claim, you are the prevailing party and can seek fees on identical terms. A voluntary dismissal without prejudice usually will not confer prevailing-party status, because the plaintiff keeps the option to refile. Winning a temporary restraining order or a procedural skirmish also falls short. The win has to be substantive enough to resolve the core dispute.¹

How Judges Decide Whether To Shift Fees

Prevailing-party status gets you in the door. It does not get you the check. Fee awards are discretionary, and the Supreme Court in Fogerty v. Fantasy, Inc. rejected both automatic awards and any approach that favors plaintiffs over defendants. Judges must evaluate both sides using identical criteria.⁵

Courts weigh four non-exclusive factors:

Objective unreasonableness of the losing side’s legal and factual positions. This factor tends to carry the most weight.
Frivolousness, meaning whether the claim or defense had any realistic chance from the outset.
Motivation, including whether the case was pursued in good faith or to harass, delay, or extract a nuisance settlement.
Compensation and deterrence, viewed through the broader purposes of the Copyright Act.

In Kirtsaeng v. John Wiley & Sons, Inc., the Court clarified that objective unreasonableness is important but not controlling. A court can award fees even when the losing party’s position was reasonable, and can deny them when it was unreasonable, because the full set of circumstances matters.⁶ A party who litigated a genuinely close question in good faith usually will not face a fee award, even after losing.

How The Fee Amount Is Calculated

Once a court decides fees are warranted, it uses the lodestar method: the number of hours reasonably spent on the case, multiplied by a reasonable hourly rate. That figure is presumptively reasonable and anchors the award.

A reasonable rate reflects what attorneys of comparable skill and experience charge in the relevant legal market for similar intellectual property work. Rates vary widely by city, and the court looks at the local market rather than national averages. The party asking for fees bears the burden of producing evidence that the claimed rates match the market.

Hours get the same scrutiny. Entries that look excessive, redundant, or disproportionate to the task get cut. If a senior partner billed ten hours on work a junior associate could have handled, the court may apply a lower rate to those hours. Vague entries without enough detail to evaluate often get reduced or excluded. Most fee disputes are actually fought at this stage, which is why contemporaneous time records showing what was done and why are essential.

Adjustments above the lodestar are rare. Downward adjustments are more common, especially when the prevailing party won on only some claims. If you prevailed on one copyright claim but lost on three others, the court will likely cut the award to the time attributable to the successful claim.

What “Full Costs” Actually Covers

Section 505 also authorizes “full costs” on top of fees, but the Supreme Court narrowed that phrase sharply in Rimini Street, Inc. v. Oracle USA, Inc. Costs are now limited to the categories listed in 28 U.S.C. §§ 1920 and 1821, not every expense incurred during litigation.⁷ Section 1920 covers clerk and marshal fees, transcript fees, printing and witness fees, copying costs, docket fees, and compensation for court-appointed experts and interpreters.⁸

Not on that list: fees for party-retained expert witnesses, e-discovery expenses, jury consultants, and travel. If you spent heavily on experts, that money is not recoverable as “costs” under the Copyright Act, no matter how decisively you won.

Using Rule 68 To Create Fee Pressure

A defendant can use Federal Rule of Civil Procedure 68 to put real fee pressure on the plaintiff before trial. Under Rule 68, a defendant serves a formal offer to allow judgment for a specified amount. If the plaintiff rejects it and then obtains a judgment less favorable than the offer, the plaintiff must pay all costs incurred after the date of the offer.⁹

Here is the twist for copyright cases. Because § 505 treats attorney’s fees “as part of the costs,” courts in several circuits have held that a rejected Rule 68 offer can shift post-offer attorney’s fees onto the plaintiff, not just filing fees and copying charges. A well-calibrated Rule 68 offer forces the plaintiff to weigh the remaining upside of trial against the risk of absorbing the defendant’s legal fees from that date forward.

To work as intended, the offer should state clearly that costs are included. An offer silent on costs can backfire if the plaintiff accepts it and then separately moves for statutory costs and attorney’s fees on top of the offer amount.

The Deadline To Request Fees

The formal request is made by motion under Federal Rule of Civil Procedure 54(d)(2). Unless a statute or court order says otherwise, the motion must be filed within 14 days after entry of the final judgment.¹⁰ Miss it, and the right to fees is typically forfeited, however strong the claim would have been.

The initial motion does not need to include every supporting document. Rule 54(d)(2) requires enough to put the opposing side and the court on notice of the claim and to provide the amount sought or a fair estimate. The detailed backup — time records, rate declarations, billing summaries — comes later on the court’s schedule, and the opposing party gets a chance to challenge the hours, the rates, or both.¹⁰

Two Situations Where Fee Recovery Works Differently

If your case is at the Copyright Claims Board rather than in federal court, the fee rules change dramatically. The CCB, operational since 2022, handles smaller copyright disputes, and attorney’s fees are generally not available there. The only route to a fee award is bad faith conduct, and even then recoveries are capped at $5,000 in attorney’s fees and costs, or $2,500 for a self-represented party recovering costs only. The CCB can exceed those caps only in extraordinary circumstances, such as a demonstrated pattern of bad faith.¹¹ For a defendant facing a weak claim, the inability to recover substantial fees after winning removes one of the strongest deterrents the federal system provides.

If you represent yourself, you cannot recover attorney’s fees. The Supreme Court held in Kay v. Ehrler that a pro se litigant — even one who is a licensed attorney — cannot recover attorney’s fees under a federal fee-shifting statute, because the concept presupposes an agency relationship between a lawyer and a client.¹² Federal courts have broadly applied that reasoning to § 505. A pro se winner can seek taxable costs, but not fees.

1
Office of the Law Revision Counsel. 17 USC 505 – Remedies for Infringement: Costs and Attorneys Fees
2
Office of the Law Revision Counsel. 17 USC 412 – Registration as Prerequisite to Certain Remedies for Infringement
3
U.S. Copyright Office. Overview of the Registration Process
4
Legal Information Institute. Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources
5
Legal Information Institute. Fogerty v. Fantasy, Inc.
6
Justia U.S. Supreme Court Center. Kirtsaeng v. John Wiley and Sons, Inc., 579 U.S. 197 (2016)
7
Justia U.S. Supreme Court Center. Rimini Street, Inc. v. Oracle USA, Inc., 586 U.S. ___ (2019)
8
Office of the Law Revision Counsel. 28 USC 1920 – Taxation of Costs
9
Legal Information Institute. Rule 68 – Offer of Judgment
10
Legal Information Institute. Federal Rules of Civil Procedure Rule 54 – Judgment; Costs
11
Office of the Law Revision Counsel. 17 USC 1506 – Conduct of Proceedings
12
Legal Information Institute. Kay v. Ehrler, 499 U.S. 432 (1991)