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The U.S. Supreme Court has denied a Florida real estate broker's petition for review of a lower court ruling that he was not entitled to attorney fees after a copyright infringement lawsuit was voluntarily dismissed. The case, involving John Abdelsayed and his company Trends Realty USA Corp., centered on claims made by Affordable Aerial Photography Inc. over alleged use of a copyrighted photograph on the brokerage's website.

Abdelsayed and his company sought to collect legal fees under Federal Rule of Civil Procedure 68, which allows for fee awards when a settlement offer is more favorable than the judgment that follows, and under the Copyright Act’s cost-shifting provision. However, the Eleventh Circuit ruled against Abdelsayed, holding that Rule 68 only applies in cases where a judgment has been obtained for an amount less favorable than a defendant’s settlement offer. The court noted that it does not apply when a defendant prevails outright.

In their petition to the Supreme Court, Abdelsayed and Trends Realty argued that a circuit split existed on whether a preclusive judgment is required for a defendant to be deemed a prevailing party. Some circuits have ruled that a defendant who wins, even without a final judgment, can still be considered a prevailing party if the lawsuit ends without altering the legal relationship between the parties. Abdelsayed contended that this view was consistent with "more than a century of history" before the 2001 Buckhannon decision, which changed how courts view prevailing parties.

The petition also noted that the majority of circuits, after Buckhannon, adopted a “risk of refiling” test. According to this test, a defendant is not considered to have prevailed if the plaintiff is still able to file a new lawsuit. Abdelsayed’s team argued that this approach discouraged defendants from standing firm on valid defenses while incentivizing plaintiffs to file unfounded claims.

This case originated in August 2021 when Affordable Aerial filed a lawsuit against Abdelsayed and Trends Realty in the Southern District of Florida. The company alleged that Abdelsayed had used one of its copyrighted aerial photographs without permission on the Trends Realty website. However, in August 2022, Affordable Aerial voluntarily dismissed the lawsuit without prejudice, meaning it could potentially refile the case later.

In response, Abdelsayed and his company sought to recover attorney fees, arguing that under Rule 68 and the Copyright Act, they were entitled to immediate reimbursement. They claimed that the dismissal without prejudice meant they had already won the case. The district court had originally ruled that should the case be refiled, Affordable Aerial would need to pay the defendants’ legal fees incurred up to that point. However, the court denied Abdelsayed’s request for immediate recovery of fees, which led to the appeal.

The parties did not immediately respond to requests for comment following the Supreme Court’s decision. The case is now officially closed at the high court level, with no further action pending.

Abdelsayed is represented by Griffin C. Klema of Klema Law PL. Affordable Aerial Photography is represented by Daniel DeSouza of CopyCat Legal PLLC.

The case is Abdelsayed et al. v. Affordable Aerial Photography Inc., case number 24-267, in the U.S. Supreme Court.