William Rehnquist

“ In the case before us, the successful defense of "The Old Man Down the Road" increased public exposure to a musical work that could, as a result, lead to further creative pieces. Thus a successful defense of a copyright infringement action may further the policies of the Copyright Act every bit as much as a successful prosecution of an infringement claim by the holder of a copyright.
Respondent finally urges that the legislative history supports the dual standard, relying on the principle of ratification. ”

“ The most common reason advanced in support of the dual approach is that, by awarding attorney's fees to prevailing plaintiffs as a matter of course, it encourages litigation of meritorious claims of copyright infringement. ”

“ This decision was based on what we found to be the important policy objectives of the Civil Rights statutes, and the intent of Congress to achieve such objectives through the use of plaintiffs as " `private attorney [s] general.' " Ibid. In Christiansburg, supra, we determined that the same policy considerations were not at work in the case of a prevailing civil rights defendant. We noted that a Title VII plaintiff, like a Title II plaintiff in Piggie Park, is "the chosen instrument of Congress to vindicate `a policy that Congress considered of the highest priority.' " 434 U. S., at 418. ”

“ Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an `author's' creative labor. ”

“ Unless, therefore, some provision is made for financial protection to a litigant, if successful, it may not pay a party to defend rights, even if valid, a situation opposed to justice . . . . It is increasingly recognized that the person who forces another to engage counsel to vindicate, or defend, a right should bear the expense of such engagement and not his successful opponent . ”

“ Pons, 434 U.S. 575, 580 (1978) ("Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re enacts a statute without change . . .") . Respondent surveys the great number of lower court cases interpreting the identical provision in the 1909 Act, 17 U.S.C. § 116 (1976 ed.) , and asserts that "it was firmly established" that prevailing defendants should be awarded attorney's fees only where the plaintiff's claim was frivolous or brought with a vexatious purpose. Brief for Respondent 40-45. ”

“ Johnson, 343 U.S. 779, 783 (1952) ("Statutes which invade the common law . . . are to be read with a presumption favoring the retention of long established and familiar principles, except when a statutory purpose to the contrary is evident") . Not surprisingly, no court has held that § 505 (or its predecessor statute) adopted the British Rule. ”

“ At one point, the study notes that "courts do not usually make an allowance at all if an unsuccessful plaintiff's claim was not `synthetic, capricious or otherwise unreasonable,' or if the losing defendant raised real issues of fact or law." Brown Study 85. [16]
Our review of the prior case law itself leads us to conclude that there was no settled "dual standard" interpretation of former § 116 about which Congress could have been aware. We note initially that at least one reported case stated no reason in awarding attorney's fees to successful defendants. See, e. ”

“ Buck, 283 U.S. 202 (1931) , a case which did not involve attorney's fees, but instead addressed the damages provision of § 25 of the 1909 Act, 35 Stat. 1081.↑ To this extent, the Brown Study focuses more on the effect that the prospect of an award of attorney's fees has on decisions to litigate or to settle cases. Based on its interview sources, the study concluded that the likelihood of getting a fee award is so problematic that "it is not a factor" that goes into the decision to settle or litigate. ”

“ Nor does Fantasy's `knowledge of Fogerty's creativity' mean that this suit was brought in bad faith, where a finding of subconscious copying would have supported Fantasy's infringement claim." App. to Pet. for Cert. A-31 (internal citation omitted) .↑ By predicating an award of attorney's fees to prevailing defendants on a showing of bad faith or frivolousness on the part of plaintiffs, the "dual" standard makes it more difficult for prevailing defendants to secure awards of attorney's fees than prevailing plaintiffs. ”

“ Brown Study 85. The report also noted that its observations about attorney's fees "are not intended as an exhaustive treatment of the subject" and that " [attorney's fees'] deterrent effect on ill founded litigation, whether by plaintiffs or defendants, is outside the scope of this inquiry." Id., at 85-86.↑ Citing to Cloth v. Hyman, 146 F. Supp. 185, 193 (SDNY 1956) (it is proper to award fees to prevailing defendant when copyright action is brought in bad faith, with a motive to "vex and harass the defendant," or where plaintiff's claim utterly lacks merit) . ”