Federal Rule of Civil Procedure 68 (Rule 68) is a cost-shifting rule that allows a non-prevailing defendant who made an offer of judgment more favorable than the final judgment to recover costs incurred from the point the offer was made. Until the mid-1980s, whether the rule could apply to the attorney’s fees was the source of much debate. In 1985, the U.S. Supreme Court provided a partial answer when it decided Marek v. Chesny, holding that Rule 68 operates to preclude a civil rights plaintiff from recovering post-offer attorney’s fees. The Court stated that Rule 68 costs include all costs “properly awardable” under the relevant substantive statute. The relevant statute in Marek was 42 U.S.C. § 1988, which allowed (as it does today) fees to the prevailing party.
Whether defendants can recover post-offer attorney’s fees under Rule 68 has been an open question since Marek. Courts deciding copyright cases are split on the answer. This Comment argues that copyright defendants cannot recover post-offer attorney’s fees under the rule. Such fees are not “properly awardable” under the plain language of 17 U.S.C. § 505 because that statute allows for attorney’s fee awards only to the prevailing party, and in any Rule 68 scenario, the defendant will necessarily be the non-prevailing party. Furthermore, shifting a defendant’s post-offer attorney’s fees to a prevailing plaintiff frustrates § 505’s purpose of encouraging meritorious litigation, which works to shape the contours of copyright law.
* Note & Comment Editor, American University Law Review, Volume 71; J.D. Candidate, May 2023, American University Washington College of Law; B.A., Criminology and Criminal Justice, 2010, University of South Carolina. Thank you to the fantastic American University Law Review staff for their thoughtful edits and careful attention to this piece. I would also like to thank my faculty advisor, Michael Carroll, for his guidance and input. Finally, thank you to my family and my wife, Chelsea, for their unconditional support.