Dawn Geske Sep. 9, 2016, 9:51am


LOS ANGELES (Legal Newsline) – Rock group Led Zeppelin was turned down in court for recovery of its attorneys fees in its much publicized “Stairway to Heaven” copyright infringement case.

The U.S. Court of Appeals for the Ninth Circuit rejected Led Zeppelin’s motion to recover the fees that were paid for their legal defense in the copyright infringement case that compared its song “Stairway to Heaven” with lesser-known group, Spirit’s “Taurus” song.

The case went to a jury, which ruled for Led Zeppelin. The group later filed that it should be eligible for payment of its attorneys fees from the case.

Recovery of attorney fees is a common practice in copyright cases for the prevailing party as they are looking to recoup some of the investment it made.

“Once you prevail, the court has the discretion to award attorney fees to the prevailing party under the Copyright Act,” Bryan M. McGarry, associate at Dorsey Whitney, told Legal Newsline.

“When you’re a litigant, and especially when you get through litigation to the end and you’re the prevailing party, most litigants will want to pursue any avenue by which they can recover fees.”

In Led Zeppelin's case, Ninth Circuit Judge R. Gary Klausner took into account the standard five factors as well as the U.S. Supreme Court’s decision in Kirtsaeng v. John Wiley & Sons Inc.

Klausner ruled against awarding the fees to Led Zeppelin, saying that fees were not appropriate as the claim was objectively reasonable and properly motivated.

“Not a lot changed with Kirtsaeng in the Ninth Circuit because the Ninth Circuit sort of considered those five factors,” McGarry said. “Kirtsaeng basically says any other factors are relevant. That’s generally the position of the Ninth Circuit. In other circuits, or for example if Led Zeppelin was in another circuit, it could have come out differently after Kirtsaeng.”

For the five standard factors that were considered by Klausner, he found that the degree of success obtained in the claim weighed in favor of Led Zeppelin as well as the need for compensation. The factors of frivolousness and objective reasonableness both favored the plaintiff as well as the factor of motivation.

While the five factors are considered by the court, it is not necessary for a party to prove all five factors in order to be awarded attorneys fees.

“It’s definitely not all five,” McGarry said. “It’s sort of a balancing weight analysis so you don’t have to prove all five. I wouldn’t even say you have to prove a majority.”

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