WC Realty Group, Inc., dba Century 21 WC Realty v. Affordable Aerial Photography, Inc.

Whether a defendant is barred from recovering attorney’s fee under 17 U.S.C. §505 because a plaintiff’s Rule 41(a)(1) voluntary dismissal is not a court-ordered dismissal. 1

In exercising discretion under §505, this Court has identified factors to be considered so long as their application remains faithful to the purposes of the Copyright Act. The Fifth and Sixth Circuits apply these factors with a presumption in favor of granting fee awards, whereas the First, Eighth, and Ninth Circuits reject a presumption. The Seventh Circuit employs a shifting presumption that balances against the goals of the Act and asymmetric recoveries available to litigants, resulting in a “very strong” presumption in favor of a defendant recovering attorney’s fees, including after a voluntary dismissal. By contrast, the Eleventh Circuit does not apply a presumption, but has approved weighing a plaintiff’s Rule 41(a)(1) voluntary dismissal as a factor against granting a defendant’s fee motion. The question presented is: Whether a plaintiff’s voluntary dismissal of its infringement claims weighs in favor of granting a defendant’s fee motion, or weighs against it, under the analysis required by §505 of the Copyright Act and the goals and purposes of encouraging defendants to stand on their rights and present meritorious defenses instead of paying nuisance settlements. 1 This question is also presented in Property Matters USA, LLC v. Affordable Aerial Photography, Inc., No. 24-688.