Attorney Fees Update

The U.S. Court of Appeals for the Ninth Circuit decided that a federal declaratory action for a determination of rights to the likeness of Albert Einstein was brought “under” the Astaire Celebrity Image Protection Act, Calif. Civ. Code Sec. 3344.1 for purposes of awarding attorney fees to the prevailing party. Electronic Arts Inc. (EA) v. Hebrew University of Jerusalem (HUJ), 03-15270. EA filed a declaratory suit in the U.S. District Court for the Northern District of California seeking a ruling that its use of Einstein's likeness in “Command & Conquer” video games didn't infringe on HUJ's post-mortem publicity rights. The district court denied EA's attorney fees request. Reversing in an unpublished opinion, the appeals court noted that Sec. 3344.1 is similar to the Copyright Act in that 17 U.S.C. Sec. 505 allows for a discretionary award of attorneys' fees to the “prevailing party” in “any civil action under it.” The appeals court concluded that “an action brought to declare the rights and responsibilities of affected parties under Sec. 3344.1 is brought under the statute regardless whether the suit is filed by the person who allegedly violated the statute or the injured party.” The appeals court then remanded the case for the district court to determine whether EA was the “prevailing party.”