Prevailing Party Did Not Prevail Enough for Attorney’s Fee Award

Yellow Pages Photos sued Ziplocal and Yellow Pages Group for copyright infringement.  The jury found that Ziplocal willfully infringed 123 copyrights owned by Yellow Pages Photos.  The jury awarded Yellow Pages Photos $123,000 in statutory damages against Yellow Pages Group for willful infringement, $1 in actual damages against Ziplocal, $0 in statutory damages against Ziplocal and $100,000 in actual damages for Ziplocal’s contributory willful infringement.  The total jury award against Ziplocal was $100,001.  Yellow Pages Photos brought a post trial motion against Ziplocal for attorney’s fees and costs. 

The Copyright Act provides in 17 U.S.C. §505 that “the court in its discretion may allow the recovery of full costs by or against any party.”  Under §505, “the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.”  The district court refused to award attorney’s fees under the Copyright Act.

An award of fees to either side would run afoul of any perceived even-handed approach. The jury’s verdict speaks for itself that Ziplocal committed both willful infringement and willful contributory infringement. Nevertheless, the jury did not award a great amount of damages. While the Plaintiff vigorously and successfully defended its copyright, the damages sought based on the number of works at 10,200 far exceeded those actually recovered for the less than 200 works. The disconnect between the damages sought and the damages awarded weigh heavily against an award of fees. The Court exercises its discretion to deny attorney’s fees under the Copyright Act in this very contentious case.

The district court did award Yellow Pages Photos attorney’s fees and costs against Ziplocal for breaching Yellow Pages Photo’s End User License Agreement (EULA).  Florida state law applied to the EULA breach and the district court did not have discretion under state law to deny the fee award.  The jury awarded $0 to Yellow Pages Photo’s for Ziplocal’s breach of the EULA.

This case is Yellow Pages Photos, Inc. v. Ziplocal, LP, No. 8:12-cv-755-T-26TBM, U.S. District Court, Middle District of Florida.