attorney's fees: 17 U.S.C §412 v §1203

From: _J_e_f_f__S_e_d_l_i_k_ <kildes-cnicopyright5393[_at_]mailster.com>
Date: Mon, 12 Jul 2004 12:55:27 -0400

I'm writing an article on copyright and I'm trying to reconcile 17 U.S.C. §412 with §1203, in reference to awards of attorney's fees.

§412 establishes that under Title 17 there can be no award of attorneys' fees unless the registration pre-dates the infringement or is dated within 90 days of first publication.

§1203 (b)(5) provides that the court may award attorney's fees in matters involving violations of §1201 and §1202, but makes no reference to §412 or timely registration, and does not include a proviso such as "except as otherwise provided in this title." That proviso does appear in section (c) with regard to damages. But not in section (b) with regard to recovery of attorney's fees.

Can attorney's fees be recovered in claims involving violation of §1201 and/or §1202, even if a work is registered after the infringement and more than 90 days after first publication? Or does the proviso in §412 "...in any action under this title..." take precedence over §1203 and prohibit awards of attorney's fees in matters involving untimely registrations?

I've included pertinent excerpts (with emphasis added) below.

Thanks in advance for your comments.
_J_e_f_f__S_e_d_l_i_k_

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§ 412. Registration as prerequisite to certain remedies for infringement in any action under this title, other than an action brought for a violation of the rights of the author under section 106A(a) or an action instituted under section 411(b), no award of statutory damages OR OF ATTORNEY'S FEES, as provided by sections 504 and 505, shall be made for —

(1) any infringement of copyright in an unpublished work commenced before
the effective date of its registration; or

(2) any infringement of copyright commenced after first publication of the
work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.

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§ 1203. Civil remedies
(a) Civil Actions. — Any person injured by a violation of section 1201 or
1202 may bring a civil action in an appropriate United States district court for such violation.

(b) Powers of the Court. — In an action brought under subsection (a), the
court —

(1) may grant temporary and permanent injunctions on such terms as it deems
reasonable to prevent or restrain a violation, but in no event shall impose a prior restraint on free speech or the press protected under the 1st amendment to the Constitution;

(2) at any time while an action is pending, may order the impounding, on
such terms as it deems reasonable, of any device or product that is in the custody or control of the alleged violator and that the court has reasonable cause to believe was involved in a violation;

(3) may award damages under subsection (c);

(4) in its discretion may allow the recovery of costs by or against any
party other than the United States or an officer thereof;

(5) in its discretion may award reasonable ATTORNEY'S FEES to the prevailing
party; and

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Received on Mon Jul 12 2004 - 20:55:27 GMT