Are reasonable attorneys fees recoverable under copyright and/or intellectual property law

Attorneys fees for violation of the United States Copyright Laws is govered by federal law. Therefore, it does not vary by state. Attorneys fees are available if registration with the US Copyright Office is made within 3 months after publication of the work or prior to an infringement of the work. There may be additional claims other than violation of Copyright law that may grant attorneys fees in different states

Attorneys fees are recoverable in "exceptional" cases under trademark and patent law, at the discretion of the trial court in copyright cases (provided you registered copyright within 3 months of first publishing the work), and as provided by state statute for trade secret cases. For example, in Washington you may recover up to treble damages and attorneys fees for a violation of the Washington Trade Secret Act.

The important thing to remember is that the trial court has enormous discretion to set fees, if any. For example, you may spend 100,000 defending a bogus patent or trade dress infringment suit, have the claim thrown out by the trial court, and still not recover any attorneys fees.

Don't count on attorneys fees, but consider them a helpful possibility.

Federal law determines whether the prevailing party is entitled to recover its attorneys' fees in a copyright case. The statute on point is 17 USC section 505 which grants the judge hearing the case the right to award attorneys' fees at his or her discretion. There is no set rule, therefore, to determine if attorneys' fees will be awarded.

The Supreme Court has blessed certain factors that the judge can use, however: " ... These factors include 'frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.'" Fogerty v. Fantasy, Inc., 510 US 517, n.19 (1994).

As for the potential award of attorneys' fees in other areas of intellectual property law (patent, trademark, and trade secret) each has it own rules.

In patent and federal trademark cases, federal law controls and attorneys' fees are generally awarded only if the case is "exceptional" -- a term of art that means different things under patent law and trademark law and even among the different courts throughout the country.

The award of attorneys' fees in a state trademark or trade secret case is controlled by whichever state law applies.

In short, there is no short answer. Every dispute (and lawsuit) has its own peculiarities that makes it unique.

The answer is yes if you registered the work and if the judge orders it. These cases are tricky and federal court is daunting. I suggest you hire an attorney.

Well, it *can* vary by where you are -- depending on which party you are. In copyright cases, the "prevailing party" is supposed to collect their attorneys fees from the other side. However, the circuits have looked at that standard a little differently. Where you are located, in the Seventh Circuit, if the defendant prevails, then the defendant gets his fees.

On the other hand, in (for example) the Fifth and Eleventh Circuits, the defendant only gets his fees if the case was brought in bad faith.