Kirtsaeng v. John Wiley & Sons (II) — Objective Reasonableness Guides Copyright Attorney Fees

Background

This case is the second round of litigation between Supap Kirtsaeng and textbook publisher John Wiley & Sons. In the first round (Kirtsaeng v. John Wiley & Sons, 568 U.S. 519, 2013), the Supreme Court held in Kirtsaeng’s favor: the first-sale doctrine applies to books manufactured abroad, and he could resell them domestically without infringement.

Having won, Kirtsaeng sought attorney fees under 17 U.S.C. §505, which allows prevailing parties in copyright cases to recover their fees. He requested over $2 million. The district court denied fees, emphasizing that Wiley’s legal position — though it lost — was objectively reasonable. The Second Circuit affirmed. The question: what standard governs fee awards under §505?

The Court’s Holding

Justice Kagan wrote for a unanimous Court, holding that objective reasonableness of the losing party’s position is the most important factor in §505 fee determinations, and courts must give it substantial weight. A losing party that advanced a reasonable legal position should not ordinarily pay the winner’s fees — this encourages parties to bring and defend meritorious, close legal questions without fear that losing will trigger massive fee liability.

However, the Court also held that objective reasonableness is not the sole or controlling factor — it is not a categorical rule. Courts retain discretion to consider all relevant circumstances, including frivolousness, motivation, purposes served by the Copyright Act, and the need to advance compensation and deterrence. A court could still award fees to a prevailing party even against a reasonable losing party if other factors strongly favor an award, and vice versa.

Key Takeaways

• Objective reasonableness of the losing party’s legal position is the primary factor in §505 copyright fee awards, but not a categorical rule.
• Parties who advance objectively reasonable litigation positions — even losing ones — generally should not face fee shifting.
• Courts retain full discretion to weigh all relevant factors, and can award fees even when the losing party was reasonable, or deny them even when the losing party was unreasonable.
• The standard is designed to encourage parties to pursue close legal questions without chilling effect from winner-take-all fee risk.

Why It Matters

The §505 standard matters enormously in copyright litigation, where fee awards in major cases can easily reach millions of dollars. By centering objective reasonableness, the Court made it harder for prevailing parties to weaponize fee motions against defendants or plaintiffs who took colorable but ultimately losing positions — which includes nearly every close copyright case that reaches the Supreme Court.

The ruling also signals that copyright fee litigation is not a rubber stamp for either plaintiffs or defendants. Both sides must assess the reasonableness of their own positions before filing or defending cases, knowing that truly unreasonable positions risk fee exposure. This decision is frequently cited in post-trial fee disputes across copyright litigation.