Boesen v. United Sports Publications, Ltd.
21-1029-cv
| 2d Cir. | Feb 15, 2022Background
- Plaintiff Michael Boesen sued United Sports Publications, Ltd. for copyright infringement based on an embedded Instagram post containing his copyrighted image.
- United Sports successfully defended the claim on fair-use grounds in the district court.
- United Sports moved for attorney’s fees under 17 U.S.C. § 505; the district court denied the motion.
- The district court found some concerns about Boesen’s motivation and his counsel’s litigation practices but concluded Boesen’s claim was objectively reasonable and non-frivolous.
- United Sports appealed the denial of fees; Boesen asked for fees for defending the appeal.
- The Second Circuit reviewed the denial for abuse of discretion and affirmed the district court; it also denied Boesen’s request for appellate fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court abused its discretion in denying attorney’s fees under the Copyright Act | Boesen argued his claim was reasonable and non-frivolous | United Sports argued the court should have awarded fees after prevailing | Court affirmed: no abuse of discretion; district court made a particularized, case-by-case assessment |
| Whether the district court misapplied Kirtsaeng by treating novelty/importance as a basis to deny fees | Boesen relied on district court’s finding of objective reasonableness | United Sports said the court improperly credited the novelty/importance of the legal issue | Court held the district court properly considered novelty as part of objective-reasonableness factor and did not misapply Kirtsaeng |
| Whether the district court failed to properly weigh plaintiff’s/counsel’s improper motivation or exploitation of copyright law | Boesen emphasized reasonable basis of claim despite counsel’s style | United Sports argued counsel’s exploitation and motive warranted fees against plaintiff | Court held the district court considered motivation and weighed it against objective reasonableness; its judgment was discretionary and not an abuse of discretion |
| Whether Boesen should receive fees for defending this appeal | Boesen sought fees for defending the appeal | United Sports opposed; argued appeal was proper | Court denied Boesen’s request; held United Sports’ appeal was objectively reasonable and non-frivolous |
Key Cases Cited
- Scarangella v. Group Health, Inc., 731 F.3d 146 (2d Cir. 2013) (denial of fee award reviewed for abuse of discretion)
- Fogerty v. Fantasy, Inc., 510 U.S. 517 (U.S. 1994) (Section 505 is discretionary; lists nonexclusive factors for fee decisions)
- Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197 (U.S. 2016) (requires case-by-case assessment, equal treatment of prevailing plaintiffs and defendants, and consideration of factors like objective reasonableness)