Hiring a Copyright Attorney

Tips on finding and hiring the right copyright lawyer.

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If you don’t know of a good copyright attorney, you may be able to find one through your business contacts. For example, if you are a writer, you may get help from your publisher, your literary agent, other writers you know, or publications like Literary Market Place. In addition, attorneys in many cities throughout the country operate volunteer legal aid groups such as Volunteer Lawyers for the Arts, or California Lawyers for the Arts that help artists and writers resolve their legal problems. These groups usually work like this: You’ll generally be asked to pay a small fee ($10 to $50) to be interviewed by a paralegal or other non-attorney volunteer. Your case is then assessed and you are referred to several attorneys whom you will interview. At least 24 states have organizations that provide legal services and information to the arts community at a reduced rate. To find such an organization near you, check the national directory on the website of the Volunteer Lawyers for the Arts (VLA), the granddaddy of the organizations. Click “Resources” on the home page and then click “ National Directory.”

Intellectual Property Lawyers

Copyright is part of a larger specialty known as intellectual property law, which also includes patents and trademarks. Many lawyers who advertise as intellectual property lawyers can competently handle all three types of cases. But some are primarily patent attorneys who don’t put much effort into the copyright side of their practice. If you are shopping for a copyright lawyer, do your best to find someone who specializes primarily in copyrights. If you are dealing with a lawsuit, you should be seeking an attorney with litigation experience. Litigators usually bill on an hourly basis, though sometimes if you are bringing the suit (rather than being sued) they may take a case on “contingency.” Under this arrangement, if you win, the attorney receives a percentage, usually one‑third to one‑half, of any money you recover in the lawsuit. If you lose, the attorney receives nothing—except for out-of-pocket expenses, which can easily run into the thousands even for relatively simple cases.

Check out Nolo's Lawyer Directory and find an attorney who's profile specifically mentions copyright work

Paying an Attorney

Most copyright attorneys charge at least $200 per hour. Unless you are wealthy or own a very valuable work, any copyright infringement action is likely to cost more than you can afford to pay out of your own pocket. However, if your work was timely registered and you win your suit, the judge has discretion to order the defendant to pay your attorney fees. The amount of such an award is completely up to the judge; the only restriction is that the award be reasonable. If you have a good case and the defendant can afford to pay such fees and damages, an attorney might agree to take your case on a contingency basis— that is, collect his fees from any damages or fees that the court ultimately awards if your suit is successful.

What about defendants in copyright infringement suits?

If you are sued for infringement and prevail at trial, the judge can order the losing plaintiff to pay all or part of your attorney fees. In the past, many courts would award such fees to a defendant only if they found that the plaintiff’s suit was frivolous or brought in bad faith. But these courts would not require this in making fee awards to plaintiffs. In 1994, the Supreme Court held that this approach was incorrect and that fees must be awarded to plaintiffs and defendants in an evenhanded manner. In other words, the same criteria must be applied to both plaintiffs and defendants. (Fogerty v. Fantasy, Inc., 114 S.Ct. 1023 (1994).) The criteria some courts use to decide whether to award attorney fees to the winning side include whether the losing party’s suit was frivolous or brought in bad faith, or whether the losing party otherwise acted unreasonably. Many courts will be especially likely to award fees to a prevailing party whose actions helped to advance the copyright law or defend or establish important legal principles. Copyright and contract information hotline.

How to Keep Your Fees Down

Most attorneys bill on an hourly basis ($200 to $300 an hour) and send you a bill at the end of each month. Some attorneys bill on a fixed fee basis where you pay a set fee for certain services—for example, $5,000 for a license negotiation. Here are some tips to reduce the size of your bills.

  • Get a Fee Agreement It’s crucial that you get a written fee agreement when dealing with an attorney. The fee agreement is a negotiated arrangement that establishes fixed fees for certain work rather than hourly billings. Read it and understand your rights as a client. Make sure that your fee agreement includes provisions that require an itemized statement along with the bill detailing the work done and time spent and that allow you to drop the attorney at any time. If you can’t get fixed billings, ask your attorney to estimate fees for work and ask for an explanation if the bill exceeds the estimates.
  • Keep It Short If your attorney is being paid on an hourly basis, keep your conversations short (the meter is always running) and avoid making several calls a day. Consolidate your questions so that you can ask them all in one conversation. 
  • Review Bills Carefully Your legal bill should be prompt and clear. Do not accept summary billings such as the single phrase “litigation work” used to explain a block of time for which you are billed a great deal of money. Every item should be explained with the rate and hours billed. Late billings are not acceptable, especially in litigation. When you get bills you don’t understand, ask the attorney for an explanation—and ask the attorney not to bill you for the explanation.
  • Watch Out for Hidden Expenses Find out what expenses you must cover. This is especially important if you’re hiring a lawyer on contingency, since you must often pay the lawyer’s costs even if you lose the case, which can come as a nasty surprise. Watch out if your attorney wants to bill for services such as word processing or administrative services. This means you will be paying the secretary’s salary. Also beware of fax and copying charges. Some firms charge clients per page for incoming and outgoing faxes. Other firms charge a per page copy fee which surpasses any commercial copy center. Look out for these hidden expenses in your fee agreement.
  • Don’t Take Litigation Lightly. As a general rule, beware of litigation! If you are involved in a lawsuit, it may take months or years to resolve. Some go on for decades. It often costs $10,000 or more, and the lawyers often profit the most. If you’re in a dispute, ask your attorney about dispute resolution methods such as arbitration and mediation. Often these procedures can save money and are much faster than litigation. If those methods don’t work or aren’t available, ask your attorney for an assessment of your odds and the potential costs before filing a lawsuit. Get this assessment in plain English. If a lawyer can’t explain your situation to you clearly, he or she probably won’t be able to explain it to a judge or jury clearly either. 

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