Section 505 Fees Affirmed for Objectively Unreasonable Copyright Suits Filed Without a Required Registration—Deterrence Beyond “Serial Litigants,” with Ability-to-Pay Mitigation

Introduction

Nwosuocha v. Glover (2d Cir. Feb. 19, 2026) concerns an attorneys’ fee award under the Copyright Act following dismissal of a copyright infringement case at the pleading stage. Plaintiff-Appellant Emelike Nwosuocha sued Donald McKinley Glover, II and associated music entities and publishers, alleging that Glover’s 2018 song “This is America” infringed Nwosuocha’s 2016 song “Made in America.”

The key dispute driving the fee award was procedural and statutory: the district court construed the complaint as asserting infringement of the musical composition, yet Nwosuocha had registered only the sound recording. The district court dismissed the action with prejudice and later awarded fees to Defendants under 17 U.S.C. § 505. The Second Circuit affirmed the fee award in this nonprecedential summary order.

Key Issues

  • Whether the district court abused its discretion by awarding attorneys’ fees to the prevailing defendants under 17 U.S.C. § 505.
  • How the “Fogerty factors,” particularly objective unreasonableness, motivation, and deterrence, applied where the plaintiff lacked the prerequisite copyright registration.
  • Whether the district court adequately accounted for the plaintiff’s financial circumstances in setting the fee amount.
  • Whether deterrence is limited to “serial” copyright plaintiffs.

Summary of the Opinion

The Second Circuit affirmed the district court’s award of $286,475.10 in attorneys’ fees (a substantial reduction from the $934,653.85 requested). Applying abuse-of-discretion review, the court held that the district court:

  • Performed the required “particularized, case-by-case assessment” under Kirtsaeng v. John Wiley & Sons, Inc. and Fogerty v. Fantasy, Inc..
  • Reasonably found Nwosuocha’s claims objectively unreasonable because he lacked a registration for the musical composition—an essential prerequisite to the claim as pleaded.
  • Permissibly viewed the timing of the suit (years after commercial success) as suggestive of opportunism under the motivation factor.
  • Properly invoked deterrence even though Nwosuocha was not a serial litigant.
  • Considered ability to pay and the risk of financial ruin, and reduced the requested fees accordingly.

Analysis

Precedents Cited

Manhattan Review LLC v. Yun, 919 F.3d 149 (2d Cir. 2019)

The panel relied on Manhattan Review LLC v. Yun for the standard of review: a district court’s decision to award attorneys’ fees under the Copyright Act is reviewed for abuse of discretion. This framed the appeal as one in which reversal would be appropriate only if the district court applied incorrect law, clearly misread the record, or issued an outcome outside the permissible range.

Lynch v. City of New York, 589 F.3d 94 (2d Cir. 2009)

Lynch v. City of New York supplied the canonical Second Circuit articulation of abuse of discretion: (1) erroneous view of the law, (2) clearly erroneous assessment of evidence, or (3) a decision outside the range of permissible outcomes. The panel’s affirmance repeatedly tracks this framework, emphasizing that disagreement with a district judge’s weighing of factors is not enough.

Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197 (2016)

Kirtsaeng played two roles. First, it reiterated that § 505 awards are not automatic and require a “particularized, case-by-case assessment.” Second, it emphasized that while objective reasonableness is important, courts must evaluate the full set of circumstances in light of the Copyright Act’s goals. The panel used Kirtsaeng to endorse the district court’s attention to both individualized deterrence and broader systemic deterrence (discouraging suits lacking a reasonable basis).

Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)

The decision’s fee-award analysis is anchored in Fogerty’s “nonexclusive factors”: frivolousness, motivation, objective unreasonableness, and the need to advance considerations of compensation and deterrence. The panel concluded the district court had appropriately applied these factors—especially objective unreasonableness and deterrence—without treating fees as routine.

United States v. Mangano, 128 F.4th 442 (2d Cir. 2025)

The panel cited United States v. Mangano for waiver by concession: because Nwosuocha conceded below that Defendants were “prevailing parties,” he could not revive a contrary argument on appeal. This waiver holding matters because “prevailing party” status is a statutory gateway to § 505 fees.

Faraci v. Hickey-Freeman Co., Inc., 607 F.2d 1025 (2d Cir. 1979)

Faraci supplied the principle that a party’s financial status is relevant to fixing the amount of a fee award and that courts may consider whether a lesser sum can achieve deterrence without causing financial ruin. The panel relied on the district court’s express Faraci-based analysis—along with its 25% across-the-board reduction—to reject Nwosuocha’s claim that the court ignored his hardship.

Nwosuocha v. Glover, No. 21-CV-04047 (VM), 2023 WL 2632158 (S.D.N.Y. Mar. 24, 2023)

The underlying dismissal decision shaped the fee analysis: the district court had construed the complaint as composition-based and dismissed because Nwosuocha had not registered the musical composition. It also discussed substantial similarity. The fee award—and the Second Circuit’s affirmance—largely flows from the registration defect and the plaintiff’s persistence after being put on notice of it.

Nwosuocha v. Glover, No. 23-703, 2024 WL 2105473 (2d Cir. May 10, 2024)

The prior Second Circuit decision affirmed the dismissal on the lack-of-registration issue without reaching substantial similarity. That procedural history mattered because it reinforced that the decisive flaw was not a close merits call; it was a threshold statutory prerequisite.

Legal Reasoning

  1. Discretionary fee-shifting under § 505, not automatic.
    The panel stressed that § 505 uses “may,” and that Kirtsaeng and Fogerty require an individualized, factor-driven assessment rather than a routine award to prevailing parties.
  2. Objective unreasonableness carried substantial weight.
    The district court found the claim objectively unreasonable because the complaint (as construed) asserted composition infringement without a composition registration—an essential precondition under the Copyright Act’s registration regime. The panel held that this finding fit comfortably within the district court’s discretion, especially given the conclusion that the plaintiff continued litigating after notice of the defect.
  3. Motivation may consider “opportunism” from timing, not merely profit-seeking.
    The panel rejected the argument that the district court penalized a merely “pecuniary motive.” Instead, it viewed the district court as drawing an inference from timing—bringing suit years after the challenged work’s major success—that suggested opportunism, which modestly favored fees.
  4. Deterrence is not limited to serial litigants.
    The panel treated as “baseless” the contention that deterrence applies only to repeat plaintiffs. Citing Kirtsaeng, it explained deterrence also serves the statutory purpose of discouraging suits that lack any reasonable infringement basis, thereby promoting the Copyright Act’s aims.
  5. Amount of fees: ability-to-pay considered and used to reduce the award.
    Although defendants sought $934,653.85, the district court awarded $286,475.10 after considering the parties’ relative financial positions and applying a 25% across-the-board reduction. The panel held this reflected proper consideration of Faraci and undermined the claim that the award ignored ruinous impact.

Note on a textual/statutory discrepancy: The summary order states that “17 U.S.C. § 441 plainly barred” the suit, but elsewhere (and in the underlying decisions) the prerequisite is identified as 17 U.S.C. § 411(a). Read in context, the order’s reference to § 441 appears to be a typographical error rather than a substantive change in doctrine.

Impact

Although the court issued a nonprecedential “SUMMARY ORDER,” the decision is practically instructive for litigants in the Second Circuit in at least four ways:

  • Registration defects can drive fee exposure. When a complaint is framed (or construed) in a way that makes registration a clear statutory prerequisite, pressing forward after notice may support a finding of objective unreasonableness and a § 505 award.
  • Deterrence is broadly available. The order underscores that general deterrence can justify fees even against first-time plaintiffs, especially where the defect is facial and fundamental rather than a “close or novel” copyright question.
  • Timing can inform “motivation.” Courts may consider whether delay until after commercial success suggests opportunism (while still acknowledging that many plaintiffs necessarily sue when damages become apparent).
  • Hardship arguments matter most to amount, not entitlement. Financial condition is a recognized consideration under Faraci, but it does not immunize an objectively unreasonable suit from a fee award; it more commonly affects the size and structure of the award.

Complex Concepts Simplified

“Prevailing party”
The party that wins in a way recognized by law—typically through dismissal with prejudice, judgment, or similar court-ordered relief. Here, the plaintiff conceded this issue, so it was not reviewed on appeal.
17 U.S.C. § 505 (attorneys’ fees)
A statute allowing (but not requiring) courts to award reasonable attorneys’ fees to the prevailing party in copyright cases, guided by equitable factors rather than a rigid rule.
17 U.S.C. § 411(a) (registration prerequisite)
Generally requires copyright registration before filing an infringement lawsuit for a U.S. work. If a plaintiff sues over a work or right not covered by the registration(s) they hold, the case can fail on threshold grounds.
Sound recording vs. musical composition
The musical composition is the underlying music and lyrics; the sound recording is a particular recorded performance of that composition. Registration (and alleged copying) must align with the right being asserted.
“Objective unreasonableness”
A claim can be deemed objectively unreasonable when, judged from an external standpoint (not merely the plaintiff’s sincerity), it lacks a reasonable legal or factual basis—such as suing without meeting a clear statutory prerequisite.
“Abuse of discretion” review
A deferential appellate standard. The appeals court does not decide what it would have done first; it asks whether the district court’s decision was legally wrong, clearly mistaken on the facts, or outside acceptable bounds.

Conclusion

The Second Circuit affirmed a reduced but substantial § 505 fee award where a copyright plaintiff pursued a claim the courts construed as composition-based without holding the required registration and continued after notice of the defect. Applying Fogerty and Kirtsaeng, the panel approved consideration of objective unreasonableness, opportunistic timing as part of motivation, and deterrence even for non-serial litigants, while also endorsing mitigation of the award amount based on financial circumstances under Faraci. In practical terms, the order reinforces that facial statutory defects—especially when persisted in—can transform a dismissed copyright complaint into meaningful fee exposure.