RECENT DEVELOPMENTS IN INTELLECTUAL PROPERTY LAW

Omega sued Costco for copyright infringement in the importation of copyrighted work without the copyright holder's permission.236 The lower court granted summary judgment to Costco, based upon the first sale doctrine under 17 U.S.C. § 109(a).237 The Ninth Circuit reversed the district court and remanded, in view of Ninth Circuit precedent holding the first sale doctrine did not apply to copies of copyrighted works produced abroad.238 The Supreme Court granted certiorari and, in an equally divided opinion, affirmed.239 On re- mand, the district court again granted summary judgment to Costco, but this time on the basis that Omega misused its copyright to expand its limited monopoly improperly, and granted Costco its attorney fees.240 Omega again appealed the district court's ruling.241 In the latter appeal, the Ninth Circuit affirmed, holding that, under Kirtsaeng, Omega's right to control importation and distribution of its copyrighted Omega Globe logo expired after the authorized first sale in a foreign country.242 Thus, Costco's subsequent sales of the watches in the United States could not be copyright infringement.243 C. Recovery of Attorney Fees In a somewhat unusual twist regarding recovery of attorney fees, in Ryan v. Editions Ltd. West, Inc.,244 a visual artist brought a contributory copyright infringement action against a publisher of her work.245 After losing on summary judgment and having attorney fees awarded against it, the publisher appealed.246 The Ninth Circuit held, in a matter of first impression, that a state law-derived right to recover attorney fees under a feeshifting clause in the publishing agreement between the parties would be enforced to allow the plaintiff in her copyright action to recover such fees.