United States District Court, Northern District of Illinois, E.D
July 8, 1952
STEIN ET AL.
EXPERT LAMP CO.
The opinion of the court was delivered by: LA Buy, District Judge.
Defendant's counsel has moved for assessment of attorney's fees
and costs as provided by the copyright statute. Section 116,
Title 17 U.S.C.A. provides:
"In all actions, suits, or proceedings under this
title, except when brought by or against the United
States or any officer thereof, full costs shall be
allowed, and the court may award to the prevailing
party a reasonable attorney's fee as part of the
There is no dispute between the litigants that the question of
assessing attorney's fees lies in the sole discretion of the
court under this section. In Official Aviation Guide Co. v.
American Aviation Association, 7 Cir., 1947, 162 F.2d 541
our Court of Appeals held that:
"* * * Since the defendants were the successful or
prevailing party, the District Court had no
discretion as to the ordinary costs under the said
statute which, as we have said, is mandatory in favor
of the prevailing party.
"The same provision of this statute that we think
is mandatory as to ordinary costs is wholly
discretionary as to extraordinary costs of attorneys'
fees. The instant case was hard fought and prosecuted
in good faith, and it presented a complex problem in
law. There were no further facts or circumstances
which would indicate that the court had abused its
discretion in denying attorneys' fees. We could
reverse, in an appealable case, only for an abuse of
discretion in allowing or not allowing attorneys'
fees. Advertisers Exchange v. Anderson, 8 Cir.,
144 F.2d 907, 909; Buck v. Bilkie, 9 Cir., 63 F.2d 447;
Marks v. Leo Feist, Inc., 2 Cir., 8 F.2d 460, 461."
In its opinion of January 23, 1951 dismissing the plaintiff's
complaint D.C., 96 F. Supp. 97
, this court noted the defendant's
product alleged to be infringing that of the plaintiff was
indentical in every respect with that of the plaintiff and both
plaintiff and defendant were selling them for the same purpose,
that is, lamp bases. This finding indicates the propriety and
necessity of plaintiff's resort to the protection of the court as
to his alleged rights. The fact that the court found he had no
right which could be protected under the copyright laws does not
establish that the complaint was filed in bad faith or for the
purposes of harassment. The pertinent feature compelling the
court to make the decision of January 23, 1951 was the submission
to the copyright office of plaintiff's statuette "having the
threaded mounting stub to receive a lamp socket". This
technicality and the interpretation accorded the copyright
statute defeated the plaintiff's claim.
At the hearing on the motion to dismiss, the statuettes were
submitted to the court.
The defendant's product was a perfect copy of the plaintiff's.
Clearly under such circumstances the defendant cannot now contend
the plaintiff was acting in bad faith and that it was clear the
defendant had the absolute right to copy the plaintiff's product.
The court is of the opinion that the request for assessment of
defendant's attorney's fees should be denied; that the cost item
of $97.50 for printing briefs should be denied, Ex parte Hughes,
1885, 114 U.S. 548, 5 S.Ct. 1008, 29 L.Ed. 281; that in all other
respects the costs amounting to $36.05 should be borne by the
Counsel are requested to submit an order in accord with the
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