IP Law Daily, COPYRIGHT—S.D.N.Y.: Although YouTuber prevailed on DMCA takedown lawsuit, court denies her attorney fees, (Jul 10, 2026)

By Sherri M. Schroeder, J.D.

Although the YouTuber bringing suit failed to show that another YouTuber issued DMCA take-down notices in bad faith, the court denied attorney fees after considering factors such as frivolousness, motivation, reasonableness, and deterrence.

In 2025, a New York district court ruled that a producer of YouTube videos failed to show that Digital Millenium Copyright Act (DMCA) takedown notices issued against her were made without consideration of the doctrine of fair use because her evidence was insufficient to show the copyright owner’s subjective bad faith. The defendant in that case, another YouTuber, then moved for attorney fees and costs pursuant to 17 U.S.C. § 505 and Federal Rule of Civil Procedure 54(d)(2). The court, however, denied that motion using factors such as the frivolousness and motivation of the non-prevailing party’s claims, whether the claims were objectively unreasonable, and compensation and deterrence (Shaffer v. Kavarnos, No. 7:23-cv-10059-KMK-AEK (S.D.N.Y. Jul. 8, 2026)).

Heather Shaffer operated a YouTube channel called “Hell to the No.” Carolyn Kavarnos operated a YouTube channel called “MommyRamblingsBlog.” Kavarnos submitted several takedown notices to YouTube under the DMCA alleging Shaffer used portions of Kavarnos’s videos without permission. Shaffer submitted counter-notifications asserting fair use. Shaffer then sued Kavarnos alleging the takedown notices were submitted without the required consideration of fair use. After a bench trial on the merits, the court found that Shaffer had not shown by a preponderance of the evidence that Kavarnos had the requisite mental state of deliberately ignoring fair use. Therefore, the court granted judgment in favor of Kavarnos. Kavarnos then filed for attorney fees and costs.

The court first determined that standard of review applicable. While Kavarnos moved for attorney fees under Section 505, Shaffer countered that Section 505 was inapplicable because the section under which she brought her claim—Section 512—had its own fee-shifting regime that only applied to prevailing plaintiffs. However, the court’s review of the relevant case law produced no cases in which a court denied a prevailing defendant’s Section 505 motion for attorney fees on such grounds. Therefore, the court decided to evaluate the request under Section 505.

Using the four factors outlined in Bryant v. Media Right Prods., the court began its consideration of whether to award attorney fees. Evaluating together the factors of the frivolousness of the non-prevailing party’s claims and whether such claims were objectively unreasonable, the court found Shaffer’s claims to be “firmly rooted in law,” “a close case,” and “neither ‘entirely frivolous’ nor ‘severely defective’” (citation omitted). It was therefore clear to the court that Shaffer’s filing of the case and her arguments were not objectively unreasonable.

The court then turned to the second factor—the non-prevailing party’s motivation. Here, the court found that although she did not prevail, Shaffer offered circumstantial evidence to support her claim. Additionally, Kavarnos offered no specific evidence that Shaffer’s conduct in filing the claim was retaliatory in nature. In fact, the court stated that its docket clearly showed that Kavarnos’s counsel “was far more culpable of obstructionist conduct.”

Finally, the court concluded that awarding attorney fees to Kavarnos would not deter future copyright violations by Shaffer or any third party. Per the court, Shaffer brought a single claim, and nothing in the record indicated that she would file similar claims in the future. The court also believed that the cost of filing and prosecuting a claim disincentivizes meritless litigation, especially when the fee-shifting provision of Section 512(f) allows only victorious plaintiffs to recover attorney fees and costs. When faced with Kavarnos’s argument that Shaffer’s conduct throughout the litigation imposed avoidable costs on her and the court, the court again reiterated, “To the extent Defendant’s legal fees have been exacerbated by the course of this litigation, Defendant’s counsel’s conduct is largely to blame.”

Therefore, the court denied Kavarnos’s motion.

The Case is No. 7:23-cv-10059-KMK-AEK.

Judge: Karas, K.

Attorneys: John T.D. Bathke (Phillips & Bathke, P.C.) for Heather Shaffer. Mark T. Matri (McCann & Matri LLC) for Carolyn Kavarnos.

Cases: Copyright NewYorkNews