Judge Hillman denied Marshall’s motion for attorneys’ fees. The lawsuit involved a dispute over whether the plaintiff should have been named as a co-author of a PLoS Biology paper, which would have given him the right to retract its publication. Marshall prevailed and moved for fees under 17 U.S.C. § 505, which allows for the discretionary award of costs and fees to a prevailing party in a copyright suit. Using his discretion, Judge Hillman determined that Mallon’s position was not objectively unreasonable and was not brought in bad faith, and that Mallon was unlikely to file more such suits, eliminating the need to impose fees for the purpose of deterrence.
A complaint was filed by David Oppenheimer and his company, Performance Impressions, LLC, against CIEE, Inc., alleging misuse of an aerial photograph of the Isle of Palms in South Carolina taken by Mr. Oppenheimer. CIEE (Council on International Education Exchange) is an organization that runs study abroad programs. CIEE is accused of using one of Mr. Oppenheimer’s photographs on its website without authorization.