530
Opinion of the Court
limited discussion of attorney's fees surely does not constitute an endorsement of a dual standard.
The Brown Study was intended as a supplement to the Strauss Study and, inter alia, provides information from a survey distributed to practitioners about the practical work-Jerome v. Twentieth Century-Fox Film Corp., 71 F. Supp. 914, 915 (SDNY 1946) (denying fee where court "[could] very well understand how plaintiff was driven to some litigation, although the theory of [the] action . . . was not supported by the proof"), 7 F. R. D. 190 (SDNY 1947), aff'd, 165 F. 2d 784 (CA2 1948).
Cases cited by the study involving prevailing plaintiffs: Advertisers Exchange, Inc. v. Hinkley, 199 F. 2d 313, 316 (CA8 1952) (denying an attorney's fee where plaintiff's counsel attempted to inflate and exaggerate plaintiff's claim), cert. denied, 344 U. S. 921 (1953); Ziegelheim v. Flohr, 119 F. Supp. 324, 329 (EDNY 1954) (court denied attorney's fee "since it appears to have . . . been a fairly common practice for publishers of [prayer books] to copy rather freely from each other, and since much of plaintiff's book was in the public domain, and defendant honestly, but mistakenly, believed that plaintiff was illegally attempting to copyright and monopolize the printing of ancient prayers"); Edward B. Marks Music Corp. v. Borst Music Pub. Co., 110 F. Supp. 913 (NJ 1953) (court noted only that it would not award attorney's fee because such award is discretionary); Stein v. Rosenthal, 103 F. Supp. 227, 232 (SD Cal. 1952) (awarding attorney's fees of $3,500 as an amount "reasonably necessary to redress the infringement of plaintiffs' copyright"); Northern Music Corp. v. King Record Distributing Co., 105 F. Supp. 393, 401 (SDNY 1952) (noting that prevailing plaintiff entitled to receive a reasonable attorney's fee to be assessed by the court); White v. Kimmell, 94 F. Supp. 502, 511 (SD Cal. 1950) (copyright holder, who was a successful defendant in a declaratory judgment action, was awarded costs but denied attorney's fee award without elaboration); M. Witmark & Sons v. Pastime Amusement Co., 298 F. 470, 482- 483 (EDSC 1924) (court awarded a moderate attorney's fee after noting that full allowance "would bear too heavily upon the defendant, in view of the character of the infringement and the circumstances surrounding it; but, if no fee should be allowed at all in such cases, it would probably result in many cases in a practical denial of the rights of copyright owners").
The study also cited to Jewell-LaSalle Realty Co. v. Buck, 283 U. S. 202 (1931), a case that did not involve attorney's fees, but instead addressed the damages provision of § 25 of the 1909 Act, 35 Stat. 1081.
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