PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIAM C. BOND, 

Plaintiff-Appellant,

v.

KENNETH BLUM, SR.; KENNETH BLUM,

JR.; DUDLEY F. B. HODGSON;  No. 02-1139

MCDANIEL, BENNETT & GRIFFIN;

ADELBERG, RUDOW, DORF &

HENDLER, LLC; CHRISTOPHER W.

NICHOLSON; WILLIAM SLAVIN,

Defendants-Appellees. 

WILLIAM C. BOND, 

Plaintiff-Appellee,

v.

ADELBERG, RUDOW, DORF &

HENDLER, LLC,

Defendant-Appellant,  No. 02-1219

and

KENNETH BLUM, SR.; KENNETH BLUM,

JR.; DUDLEY F. B. HODGSON;

MCDANIEL, BENNETT & GRIFFIN,

Defendants. 
WILLIAM C. BOND, 

Plaintiff-Appellant,

v.

ADELBERG, RUDOW, DORF &

HENDLER, LLC,

Defendant-Appellee,  No. 02-1231

and

KENNETH BLUM, SR.; KENNETH BLUM,

JR.; DUDLEY F. B. HODGSON;

MCDANIEL, BENNETT & GRIFFIN,

Defendants. 

WILLIAM C. BOND, 

Plaintiff-Appellee,

v.

MCDANIEL, BENNETT & GRIFFIN,

Defendant-Appellant,  No. 02-1288 and

ADELBERG, RUDOW, DORF &

HENDLER, LLC; KENNETH BLUM, SR.;

KENNETH BLUM, JR.; DUDLEY F. B.

HODGSON,

Defendants. 

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

Marvin J. Garbis, District Judge.

(CA-01-2600-MJG)

Argued: October 31, 2002

Decided: January 24, 2003

2 BOND v. BLUM
Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.

Affirmed in part and vacated and remanded in part by published opinion. Judge Niemeyer wrote the opinion, in which Judge Williams and

Judge Michael joined. 

COUNSEL

ARGUED: Howard J. Schulman, SCHULMAN & KAUFMAN,

L.L.C., Baltimore, Maryland, for Appellant. William Fitts Ryan, Jr.,

WHITEFORD, TAYLOR & PRESTON, L.L.P., Baltimore, Maryland; Andrew Radding, ADELBERG, RUDOW, DORF &

HENDLER, L.L.C., Baltimore, Maryland, for Appellees. ON

BRIEF: Amy E. Askew, WHITEFORD, TAYLOR & PRESTON,

L.L.P., Baltimore, Maryland; J. Andrew McKinney, ADELBERG,

RUDOW, DORF & HENDLER, L.L.C., Baltimore, Maryland;

Gerard P. Martin, Thy C. Pham, MARTIN, SNYDER & BERNSTEIN, P.A., Baltimore, Maryland; Kathryn M. Goldman, JIRANEK,

GOLDMAN & MINTON, L.L.C., Baltimore, Maryland, for Appellees. 

OPINION

NIEMEYER, Circuit Judge: 

On a motion for summary judgment filed in this copyright infringement action, the district court held that the defendants’ copying of a

copyrighted manuscript for introduction into evidence in a state-court

child-custody proceeding constituted a "fair use" of the manuscript

under the Copyright Act, 17 U.S.C. § 107, when the substance of the

manuscript was relevant to the issues in the child-custody proceeding

and the defendants’ use of the manuscript was solely for its content

and not for its mode of expression. The district court also awarded

attorneys fees, under 17 U.S.C. § 505, to the prevailing individual

defendants but not to the law-firm defendants because the law firms

BOND v. BLUM 3
were represented by a member of the firm and thus were acting pro

se. 

For the reasons given in this opinion, we affirm the district court’s

summary judgment and its award of attorneys fees to the individual

defendants, and we remand for reconsideration of the law-firm defendants’ motion for attorneys fees. 

I

In the child-custody case of Slavin v. Slavin, commenced in July

2000 and pending in the Circuit Court for Baltimore City, Case No.

95249006/CE 201677, Alyson Slavin Bond sued her former husband,

William Slavin, for exclusive custody of their three children. William

Slavin filed a cross-petition for exclusive custody and, in support of

his position, introduced into evidence an autobiographical manuscript

written by Alyson’s current husband, William Bond, to establish that

the home of Alyson and William Bond would not be a suitable place

for the three children. Bond’s manuscript was entitled Self-Portrait of

a Patricide: How I Got Away with Murder. 

In June 1981, when William Bond, who was formerly known as

William Rovtar, was 17, he beat his father to death with a hammer

in his grandparents’ garage in Bainbridge Township, Ohio. After

Rovtar was arrested and detained in a juvenile detention facility in

Ohio, he entered into a guilty-plea agreement in juvenile court with

the result that in September 1981 he was transferred to the Sheppard

& Enoch Pratt Hospital in Baltimore, Maryland, for psychological

treatment. Rovtar was released in 1982, and after his release, he

legally changed his name to William Bond. He remained in Maryland

and thereafter became employed as a tennis instructor at a country

club, a bicycle salesman, and a bodyguard, among other things. 

In 1987, Bond began to write Self-Portrait of a Patricide: How I

Got Away with Murder, "the true story of and by William Bond,"

which he hoped to market to publishers for profit. The manuscript

describes in horrific detail how Bond planned and committed the murder of his father with a hammer, and how his dying father attempted

to raise himself off the floor of the garage before Bond delivered the

final blows to his neck and head. It describes Bond wiping away his

4 BOND v. BLUM
fingerprints, scrubbing the garage floor, cleaning blood, flesh, and

bone from his clothes, and stuffing his father’s dead body in his car’s

trunk. Most sinister of all, it depicts a remorseless individual who

brags about fooling the police and the juvenile system to "get away

scot-free" and even collecting, as planned, the money from his

father’s estate. Although verifiable facts of the murder are consistent

with the details provided in the manuscript, Bond has now stated in

an affidavit that the manuscript is "a highly fictionalized and stylized

work," based on his "juvenile experience." Bond circulated his manuscript directly and through agents in order to find a publisher, asking

for a seven-figure advance. His efforts, however, were unsuccessful.

After some revisions, Bond also gave a copy of the manuscript to

Norman Pessin, an attorney who had represented Bond in various

unrelated matters, to help him get the manuscript published, but his

efforts, too, failed. Although Pessin thereafter died, his widow

retained a copy of the manuscript.

Bond met Alyson Slavin in early 1995, after Alyson was separated

from her husband, William Slavin. Bond and Alyson continued to see

each other until they married in May 2001. In 1996, shortly after

Bond and Alyson met, Bond wrote a lengthy letter to Alyson’s father,

Kenneth Blum, Sr., indicating that he intended to marry Alyson and

become the stepfather of her children. The letter offered an analysis

of individual members of Blum’s family and purported to offer "solutions" to correct perceived deficiencies in the Blum-Slavin extended

family. In addition, the letter set forth an expansive financial plan,

pursuant to which Bond demanded from Blum a dowry, a salary,

establishment of an investment account, purchase of a studio apartment in addition to a house, and a severance package should Bond’s

marriage with Alyson not work out. Bond stated to Blum, "You can

pay me now or pay me later." In this letter, Bond also made reference

to his personal history, stating that he "had a past," and that, although

it was "none of [Blum’s] business," it makes "interesting reading." 

Blum not only found this letter very disconcerting, considering it

to be an attempt to extort money from him, but he also became concerned for the safety of Alyson and her children. In June 2000, just

before the state custody action was commenced, Blum hired a private

investigator, Dudley F. B. Hodgson, to look into Bond’s background.

At their first meeting, Blum gave Hodgson an overview of his dealBOND v. BLUM 5
ings with Bond and expressed his concern over both the safety of his

grandchildren and Bond’s effort to "shake him down" for money.

Blum gave Hodgson a copy of the letter that Bond had sent him and

told Hodgson that he had heard that Bond may have had some problems with his family involving violence in Ohio. 

In the course of his investigation, Hodgson learned about the murder of Bond’s father and contacted the Bainbridge, Ohio police

department, obtaining copies of the police report and other documents

relating to the homicide investigation. Hodgson reported these findings to Blum, and at Blum’s request, Hodgson went to the home of

Miriam Pessin, the widow of Norman Pessin, believing that Bond had

also tried to "shake Pessin down" for money before he died. When

Hodgson interviewed Miriam Pessin in April 2001 and asked her if

she had any information that would be helpful in his investigation of

Bond, she told Hodgson that she did have, stored in a box, a looseleaf copy of a manuscript that Bond authored. Mrs. Pessin stated that

Bond had given a copy of the manuscript to her husband for him to

read for the purposes of locating a publisher. She later testified that

this box of materials was not part of Pessin’s legal files, which he

carefully kept separate, and that Bond had also given her portions of

the manuscript to read. Not wanting to retain the manuscript in her

home, Mrs. Pessin gave it to Hodgson. Hodgson made a copy of the

manuscript and gave copies to Alyson’s ex-husband, William Slavin,

and the attorneys representing him in the state custody action. William Slavin’s attorneys made the manuscript an exhibit during the

deposition of Alyson in July 2001 and intended to make it a part of

the custody litigation in the Circuit Court for Baltimore City, in which

a hearing was scheduled for December 10, 2001. For the sole purpose

of preventing further use of the manuscript in the proceedings before

the Baltimore City Circuit Court, Bond registered a copy of his manuscript with the Copyright Office in August 2001. 

Immediately after registering the manuscript, Bond commenced

this action for copyright infringement, naming as defendants Blum,

Blum’s son, Hodgson, William Slavin, and Slavin’s attorneys. He

requested a preliminary and permanent injunction prohibiting the use

of the manuscript by the defendants for any purpose and requiring the

return of all existing copies. 

6 BOND v. BLUM
At the hearing on Bond’s motion for a preliminary injunction, the

district court heard testimony from Alyson Bond, Blum, Hodgson,

and Mrs. Pessin, among others. Following the hearing, the court

found that Bond had written the manuscript and had delivered it to

Pessin and others in an effort to get it published. The court found that

Pessin’s efforts to get the book published were not "part of [Pessin’s]

legal practice, because he wasn’t doing this as a lawyer." The court

concluded that the document was not "a confidential document in any

kind of privileged sense." In addition, the court found that Hodgson

did not steal the document but was given the document by Pessin’s

wife. 

On the merits of the copyright infringement issue, the court evaluated the defendants’ defense of "fair use" by applying the four factors

set forth in 17 U.S.C. § 107. The court concluded that (1) the purpose

and character of the defendants’ anticipated use of the manuscript was

not one against which the Copyright Act sought to protect; (2) the

nature of the manuscript did not weigh against the finding of a "fair

use"; (3) the defendants were seeking to introduce the entire manuscript, which weighed against a finding of fair use; and (4) the use

would have "absolutely zero" detrimental effect on the potential market for the copyrighted work and could, "in a perverse way," actually

increase its market value. Based on these conclusions, the court held

that the challenged use was a "fair use." The court thus denied Bond’s

motion for a preliminary injunction, and then, based on the undisputed facts, granted summary judgment in favor of the defendants on

November 20, 2001.*

When Bond filed a motion to alter or amend the judgment, the district court denied the motion, finding that Bond was again "blurring

the distinction between the copyright protection afforded the mode of

expression in a written work and the ideas and facts in the public

domain which are expressed in the work." The court observed that

Bond had not established any likelihood that the defendants intended

to utilize the manuscript in any way other than that deemed by the

court to be a fair use, and that, in the event they tried to use it for

*Counsel for the parties state that at the custody hearing on December

10, 2001, in state court, William Slavin’s attorneys in fact introduced the

manuscript into evidence. 

BOND v. BLUM 7
other purposes, they would do so "at the risk of being sued as a

wil[l]ful infringer." 

Pursuant to motions filed by the defendants, the district court

awarded attorneys fees to the individual defendants under 17 U.S.C.

§ 505, but not to the law-firm defendants because the law firms were

representing themselves pro se. The court also denied the law-firm

defendants’ motions for sanctions against Bond pursuant to Federal

Rule of Civil Procedure 11. 

Bond filed an appeal from the district court’s summary judgment

entered on November 27, 2001, and the court’s subsequent order

awarding attorneys fees. The law-firm defendants cross-appealed

from the district court’s denial of their motions for attorneys fees and

for Rule 11 sanctions. 

II

Bond contends that the district court adopted a per se rule that use

of copyrighted material as evidence in a legal proceeding is always

a "fair use," "overriding" the analysis for finding "fair use" required

by 17 U.S.C. § 107. Acknowledging that the court might be able to

find the fair-use doctrine applicable to the use of copyrighted material

as evidence, Bond maintains that the court erred in doing so in this

case by not considering all of the statutorily prescribed factors. 

The defendants note that the district court did in fact consider the

factors set forth in § 107 and that the consideration of those factors

correctly demonstrated that "the non-commercial use of the manuscript in the child custody litigation did not result in any commercial

exploitation of the work or adversely affect its marketability." 

The undisputed facts show that the defendants introduced a copy

of Bond’s copyrighted manuscript into evidence in a state childcustody proceeding to prove that Bond’s household would not be a

suitable place for the children of Bond’s wife. The work, written by

Bond and circulated by him in an effort to publish it, describes how

Bond, when 17, planned and committed the murder of his father with

a hammer, fooled the police about his mental state, used the juvenile

8 BOND v. BLUM
system to obtain merely a "slap on the wrist," and recovered the proceeds of his father’s estate, all without remorse. In the manuscript, he

stated, "I wanted my father’s money." The defendants made copies of

the manuscript to use its content as evidence in the child-custody litigation, and there is no evidence of any intent to exploit the book’s

manner of expression for any purpose, commercial or otherwise.

Indeed, there is no evidence in the record to indicate that the defendants’ use of the manuscript was anything more than the presentation

of evidence in a child-custody proceeding to prove the unsuitability

of Bond’s home as a place for children. Moreover, there is no evidence that this use adversely affected Bond’s interests in the copyright. 

Applying the four factors stated in 17 U.S.C. § 107, the district

court held that the defendants’ use of the work fell within the "fair

use" exception established in 17 U.S.C. § 107, principally because the

"[p]urpose and character of [the defendants’] use has nothing whatsoever to do with any interest that the copyright law was designed to

protect. The copyright law was never designed to protect content as

distinguished from mode of expression." The court also concluded

that "the effect of the [defendants’] use on the potential market for

value of the copyrighted work is absolutely zero." 

We review the district court’s summary judgment de novo, applying the same standard that the district court was required by law to

apply for granting the motion for summary judgment. Beverati v.

Smith, 120 F.3d 500, 503 (4th Cir. 1997). 

The Copyright Act, enacted on the authority of Article I, § 8, of the

Constitution, confers on creators of original works a limited monopoly in their works of authorship to advance an important public purpose. "It is intended to motivate the creative activity of authors and

inventors by the provision of a special reward, and to allow the public

access to the products of their genius after the limited period of exclusive control has expired." Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984). The reward to the owner is "a

secondary consideration" that serves the primary public purpose of

"induc[ing] release to the public of the products of [the author’s or

artist’s] creative genius." Id. (quoting United States v. Paramount

BOND v. BLUM 9
Pictures, Inc., 334 U.S. 131, 158 (1948)); see also Harper & Row

Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 546 (1985). 

The copyright "monopoly" — i.e., the "bundle of exclusive rights

. . . to publish, copy, and distribute" the work, Harper & Row, 471

U.S. at 546-47 — is limited and subject to a list of statutory exceptions, including the exception for fair use provided in 17 U.S.C.

§ 107. See 17 U.S.C. § 106; Sony, 464 U.S. at 447. Section 107 provides explicitly that "the fair use of a copyrighted work . . . is not an

infringement of copyright." 

The fair-use doctrine is a longstanding common-law principle, now

codified in § 107, that was "traditionally defined as ‘a privilege in

others than the owner of the copyright to use the copyrighted material

in a reasonable manner without his consent.’" Harper & Row, 471

U.S. at 549 (quoting H. Ball, Law of Copyright and Literary Property

260 (1944)). The reasonableness of a use is determined on a case-bycase basis applying an "equitable rule of reason analysis." Sony, 464

U.S. at 448; see also Campbell v. Acuff-Rose Music, Inc., 510 U.S.

569, 577-78 (1994). To guide the determination of whether a particular use is a fair use, § 107 provides that a court must consider four

factors among any others relevant:

(1) the purpose and character of the use, including whether

such use is of a commercial nature or is for nonprofit educational purposes; 

(2) the nature of the copyrighted work; 

(3) the amount and substantiality of the portion used in

relation to the copyrighted work as a whole; and 

(4) the effect of the use upon the potential market for or

value of the copyrighted work. 

17 U.S.C. § 107. These factors are "not meant to be exclusive," Harper & Row, 471 U.S. at 560, but rather "illustrative," representing

"only general guidance about the sorts of copying that courts and

Congress most commonly have found to be fair uses," Campbell, 510

10 BOND v. BLUM
U.S. at 577-78. Because a particular use must be examined for its reasonableness in determining whether it is a "fair use," any per se rule

is inappropriate. Id. at 577 ("The task is not to be simplified with

bright-line rules, for the statute, like the doctrine it recognizes, calls

for case-by-case analysis"); id. at 585 ("The Court of Appeal’s elevation of one sentence from Sony to a per se rule thus runs as much

counter to Sony itself as to the long common-law tradition of fair

usage adjudication"); Sundeman v. Seajay Soc’y, Inc., 142 F.3d 194,

202 (4th Cir. 1998) (noting that fair use demands a case-by-case

inquiry). 

A fair-use analysis bears relevance only when a challenged use violates a right protected by the Copyright Act. But the statutorily protected rights are themselves limited in that a copyright does not secure

an exclusive right to the use of facts, ideas, or other knowledge.

Rather, a copyright gives an author exclusive rights only with respect

to his manner of expression. See, e.g., Baker v. Selden, 101 U.S. 99,

102 (1879); Superior Form Builders, Inc. v. Chase Taxidermy Supply

Co., 74 F.3d 488, 492 (4th Cir. 1996) (noting that "the originality

inherent in each author’s expression is the essence of the proprietary

interest protected"). In Superior Form Builders, we noted that even

though the Copyright Act will protect even the minimal quantum of

originality — "independent creation plus a modicum of creativity,"

Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346

(1991) — the public has an interest in retaining in the public domain

"the right to discover facts and exchange ideas freely. Thus, copyright

protection does not extend to ideas or facts even if such facts were

discovered as the product of long and hard work." Superior Form

Builders, 74 F.3d at 492 (internal citation omitted). 

With these general principles of copyright law in hand, we now

turn to the question before us of whether the defendants’ use of

Bond’s copyrighted manuscript as evidence in the child-custody proceeding was subject to the fair-use exception defined in § 107. To

make that determination, we apply the four factors set forth in § 107.

A

The first § 107 factor directs the inquiry into the "purpose and character of the [defendants’] use, including whether such use is of a comBOND v. BLUM 11
mercial nature or is for nonprofit educational purposes." 17 U.S.C.

§ 107(1). The use of a copyrighted work for a commercial purpose

"tends to weigh against a finding" that the challenged use is a "fair

use." Harper & Row, 471 U.S. at 562. The "crux of the profit/nonprofit distinction is not whether the sole motive of the use is

monetary gain but whether the user stands to profit from exploitation

of the copyrighted material without paying the customary price." Id.

If a challenged use of a copyrighted work is noncommercial, the party

alleging infringement must demonstrate "either that the particular use

is harmful, or that if it should become widespread, it would adversely

affect the potential market for the copyrighted work." Sony, 464 U.S.

at 451. 

Application of this factor weighs heavily against Bond’s infringement claim. The defendants’ use of Bond’s copyrighted manuscript is

not for any commercial purpose; the defendants are not seeking to

exploit the copyrighted material without paying the customary price.

Indeed, the defendants’ use is indifferent to Bond’s mode of expression. Rather, the narrow purpose of defendants’ use of the manuscript

is for the evidentiary value of its content insofar as it contains admissions that Bond may have made against his interest when he bragged

about his conduct in murdering his father, in taking advantage of the

juvenile justice system, and in benefiting from his father’s estate.

These are all facts relevant to the custody decision, and their use does

not draw on Bond’s mode of expression. 

Because the challenged use is noncommercial, Bond must demonstrate that the use of the manuscript as evidence in the litigation

would harm the potential market for his manuscript. Neither in his

brief nor at oral argument has Bond been able to identify any harm

or potential harm to his work against which the law of copyrights protects. The only harm that we can discern from his arguments is a

claim that he has lost the right to control the release of a "private" or

"confidential" document. But at oral argument, he conceded that the

document was not confidential. Indeed, it is apparent that Bond has

circulated the document in an effort to have it published. But more

importantly, the protection of privacy is not a function of the copyright law. See, e.g., New Era Publications Int’l APS v. Henry Holt &

Co., 695 F. Supp. 1493, 1504-05 (S.D.N.Y. 1988) (Leval, J.). To the

contrary, the copyright law offers a limited monopoly to encourage

12 BOND v. BLUM
ultimate public access to the creative work of the author. If privacy

is the essence of Bond’s claim, then his action must lie in some

common-law right to privacy, not in the Copyright Act. See, e.g.,

Lawrence v. A.S. Abell Co., 475 A.2d 448, 450-51 (Md. 1984). 

B

We next consider the second factor, "the nature of the copyrighted

work." 17 U.S.C. § 107(2). This factor focuses attention on the extent

to which a work falls at the core of creative expression. See Campbell,

510 U.S. at 586. Thus, for example, a fictional work might be closer

to the core of copyright than a factual work. See, e.g., Stewart v.

Abend, 495 U.S. 207, 237-38 (1990). 

That Bond’s manuscript is unpublished and contains a stylized

mode of expressing his feelings about historical facts weigh against

a finding of fair use. See Harper & Row, 471 U.S. at 564. But, as

Campbell instructs, we do not consider the § 107 factors "in isolation,

one from another," but we weigh them together "in light of the purposes of copyright." 510 U.S. at 578. Where, as here, the use of the

work is not related to its mode of expression but rather to its historical

facts and there is no evidence that the use of Bond’s manuscript in the

state legal proceedings would adversely affect the potential market for

the manuscript, one cannot say the incentive for creativity has been

diminished in any sense. And because the societal benefit of having

all relevant information presented in a judicial proceeding is an

important one, it should be furthered if doing so would not unduly

undermine the author’s rights with regard to his creative work. 

C

Under the third § 107 factor, we examine the "amount and substantiality of the portion used in relation to the copyrighted work as a

whole." 17 U.S.C. § 107(3). As a general matter, as the amount of the

copyrighted material that is used increases, the likelihood that the use

will constitute a "fair use" decreases. But this is an imperfect generalization. Compare Harper & Row, 471 U.S. 569 (holding that publication of only some 300 words from unpublished memoirs of President

Ford was not a fair use given the quality of the quoted language), with

Campbell, 510 U.S. at 594 (holding that even qualitatively substantial

BOND v. BLUM 13
copying in a parodical song is fair use when such copying serves the

necessary function of "conjuring up" the original song to advance the

parody). "The extent of permissible copying varies with the purpose

and character of the use." Campbell, 510 U.S. at 586-87. 

It is conceded that the defendants’ challenged use of the manuscript

in the state-court proceeding involved all, or nearly all, of the copyrighted work. Its use, however, was not for its expressive content, but

rather for its allegedly factual content. The sole purpose and intent of

introducing Bond’s manuscript was to obtain admissions of fact

against his interest in an effort to prove that his home would not be

a suitable place for custody of children. The use of the copyrighted

material in this context, even the entire manuscript, does not undermine the protections granted by the Act but only serves the important

societal interest in having evidence before the factfinder. See Fogerty

v. Fantasy, Inc., 510 U.S. 517, 526 (1994) ("We have often recognized the monopoly privileges that Congress has authorized, while

‘intended to motivate the creative activity of authors and inventors by

the provision of a special reward,’ are limited in nature and must ultimately serve the public good"). Because the manuscript was not used

to undermine any right conferred by the Copyright Act, Bond can

derive little benefit from this factor in the context of this case. 

D

Finally, we consider the effect of the defendants’ use of Bond’s

copyrighted manuscript "upon the potential market for or value of the

copyrighted work." 17 U.S.C. § 107(4). This factor is "undoubtedly

the single most important element of fair use." Harper & Row, 471

U.S. at 566. This is so because it touches most closely upon the

author’s ability to capture the fruits of his labor and hence his incentive to create. Under this core inquiry, we determine whether the

defendants’ introduction of the manuscript in evidence would materially impair the marketability of the work and whether it would act as

a market substitute for it. 

On this factor, there is no evidence that the admission into evidence

of Bond’s manuscript would adversely affect its marketability.

Indeed, the district court made the observation: "Ironically, if any14 BOND v. BLUM
thing, [the defendants’ use] increases the value of the work in a perverse way, but it certainly doesn’t decrease it." 

E

In sum, we conclude that the district court did not err in concluding

that the defendants’ use of the manuscript as evidence in the statecourt proceeding fell within the scope of fair use authorized by § 107

of the Copyright Act. To the contrary, we agree with the district court

when it stated:

Purpose and character of [the defendants’] use has nothing

whatsoever to do with any interest that the copyright law

was designed to protect. The copyright law was never

designed to protect content as distinguished from mode of

expression. 

* * *

It was certainly never intended to utilize, to keep from the

public the ability to state the facts in a document as compared to the mode of expression. 

* * *

[Moreover], the effect of [defendants’] use on the potential

market for value of the copyrighted work is absolutely zero.

III

Bond also contends that the district court erred in awarding attorneys fees to the individual defendants as prevailing parties, under 17

U.S.C. § 505. The district court awarded $6,675.45 each to the defendants Dudley Hodgson, Kenneth Blum, Jr., and Kenneth Blum, Sr.,

and $8,699.70 to William Slavin. 

Bond does not contest the amount of the awards, but he argues that

the district court’s findings on the factors relevant to an award of

attorneys fees were not justified. He argues that he was only seeking

BOND v. BLUM 15
to protect his rights under the Copyright Act and that his rights should

not be chilled by an assessment of attorneys fees. He argues expansively that the question of whether the introduction of a copyrighted

work into evidence was a fair use is a close question, particularly

when there are no controlling authorities on point. 

We review the district court’s award of attorneys fees under 17

U.S.C. § 505 for abuse of discretion, reversing subsidiary factual findings only if they are clearly erroneous. Diamond Star Bldg. Corp. v.

Sussex Co. Builders, Inc., 30 F.3d 503, 506 (4th Cir. 1994). 

The Copyright Act provides:

[T]he court in its discretion may allow the recovery of full

costs by or against any party. . . . Except as otherwise provided by this title, the court may also award a reasonable

attorney’s fee to the prevailing party as part of the costs. 

17 U.S.C. § 505. To determine whether an award of attorneys fees

should be made to a party under § 505, we have articulated four factors for consideration: "(1) the motivation of the parties, (2) the objective reasonableness of the legal and factual positions advanced, (3)

the need in particular circumstances to advance considerations of

compensation and deterrence, and (4) any other relevant factor presented." Diamond Star, 30 F.3d at 505 (quoting Rosciszewski v. Arete

Assocs., Inc., 1 F.3d 225, 234 (4th Cir. 1993) (internal quotation

marks omitted)). 

In applying these factors to the circumstances before it, the district

court found that Bond’s motivation in bringing his copyright infringement action was "to block potentially relevant evidence from being

presented" in the child custody proceeding. In essence, the court

stated that Bond misused the Copyright Act and that he was motivated by a desire to suppress the underlying facts of his copyrighted

work rather than to safeguard its creative expression. Assessing the

reasonableness of the legal positions advanced by Bond, the court

concluded that the fair-use question presented by Bond’s complaint

was "not a close one" and that Bond’s position was "frivolous,"

although the court recognized that frivolousness was not essential to

an award of attorneys fees. The court concluded that it was unreason16 BOND v. BLUM
able for Bond to use a copyright infringement action to attempt to bar

introduction of facts disclosed in the work as admissions against his

interest, particularly when the information was relevant to childcustody issues. Finally, the court stated that Bond and others in a

position similar to him "should be deterred from bringing meritless

actions." 

We conclude that the district court, in reaching these conclusions,

did not clearly err in its factfinding and, in applying the Rosciszewski

factors to award attorneys fees to the prevailing individual defendants,

did not abuse its discretion. 

IV

The two law-firm defendants — McDaniel, Bennett & Griffin and

Adelberg, Rudow, Dorf & Hendler, LLC — also sought attorneys

fees under 17 U.S.C. § 505, but the district court denied them because

it concluded that the firms were acting pro se and therefore were not

entitled to fees. The law firms cross-appealed, arguing that the district

court erred in applying to them the pro se exception, as stated in Kay

v. Ehrler, 499 U.S. 432 (1991) (holding that an attorney representing

himself is ineligible for attorneys fees under 42 U.S.C. § 1988). 

Because of the absence of judicial precedents and in view of the

insight provided by our decision in Doe v. Board of Education of Baltimore County, 165 F.3d 260 (4th Cir. 1998) (denying statutory fees

to an attorney-parent of a child with a disability who was a prevailing

party under 20 U.S.C. § 1415(i)(3)(B)), the district court believed that

it could not award fees under 17 U.S.C. § 505 to a prevailing law firm

when members of that law firm represent the firm. The district court

held conditionally that if it had been given "discretion to award counsel fees to the law firm defendants, it would do so," but it would have

awarded "substantially less than the amount claimed because . . . had

there been independent counsel being paid by the law firm Defendants, the matter would have been handled at far less cost than is

sought from the Plaintiff." 

The law firms contend that the district court erred in concluding

that the law firms were proceeding pro se and that the cases of Kay

and Doe preclude an award of fees to them under § 505. They state

BOND v. BLUM 17
that they are "legal entities represented by attorneys," albeit attorneys

within the firm. They argue that the Supreme Court’s statement in

Kay that "an organization is not comparable to a pro se litigant" is

dispositive on this issue. Kay, 499 U.S. at 436 n.7. They argue additionally that Local Rule 101.1(a) of the District of Maryland states

that "[o]nly individuals may represent themselves." They maintain

that a law firm using members to represent the firm is more analogous

to a State or a corporation represented by its own in-house counsel.

In each of the situations, they note, the attorney-client relationship is

created between the organization and the attorney, just as it was

between the law firms and the members representing them. 

This is an issue of first impression in our circuit, but its resolution

may readily be derived from the Supreme Court’s decision in Kay and

our decision in Doe. 

The principle that a pro se litigant who is not a lawyer is not entitled to attorneys fees authorized by a fee-shifting statute is not disputed. See, e.g., Gonzales v. Kangas, 814 F.2d 1411 (9th Cir. 1987);

Smith v. DeBartoli, 769 F.2d 451 (7th Cir. 1985); Owens-El v. Robinson, 694 F.2d 941 (3d Cir. 1982). The question more analogous to the

facts before us — whether a pro se litigant who is also an attorney

would be entitled to such fees — was addressed by the Supreme

Court in Kay. In Kay, the Court held that a plaintiff who was also an

attorney and who prevailed in a civil rights action was nonetheless not

entitled to fees under 42 U.S.C. § 1988(b), which authorizes attorneys

fees to the prevailing party, notwithstanding the fact that the attorney

"obviously handled his professional responsibilities . . . in a competent manner." 499 U.S. at 435. The Supreme Court rested its conclusion on three principles. First, as a textual matter, it concluded that an

"attorney," whose fees would be reimbursable under § 1988, "assumes an agency relationship, and it seems likely that Congress contemplated an attorney-client relationship as a predicate for an award

under § 1988." Id. at 436. Second, the Court focused on the purpose

of fee-shifting statutes "to enable potential plaintiffs to obtain the

assistance of competent counsel in vindicating their rights." Id. And

third, an award of fees to only those litigants who have retained independent counsel ensures "the effective prosecution of meritorious

claims." Id. at 437. Explaining this more fully, the Court stated:

18 BOND v. BLUM
Even a skilled lawyer who represents himself is at a disadvantage in contested litigation. Ethical considerations may

make it inappropriate for him to appear as a witness. He is

deprived of the judgement of an independent third party in

framing the theory of the case, evaluating alternative methods of presenting the evidence, cross-examining hostile witnesses, formulating legal arguments, and in making sure that

reason, rather than emotion, dictates the proper tactical

response to unforeseen developments in the courtroom. The

adage that "a lawyer who represents himself has a fool for

a client" is the product of years of experience by seasoned

litigators. 

Id. at 437-38 (footnote omitted). 

In Doe, we applied the principles of Kay to a fee-shifting provision

in the Individual with Disabilities Education Act ("IDEA"), denying

a parent, who was also an attorney, a right to collect fees under the

statute for his representation of his child. 165 F.3d at 265. Even

though a parent who was also an attorney was distinct from and therefore an agent for the prevailing child, who would otherwise be entitled to fees under IDEA, 20 U.S.C. § 1415(i)(3)(B), we concluded

that "[l]ike attorneys appearing pro se, attorney-parents are generally

incapable of exercising sufficient independent judgment on behalf of

their children to ensure that ‘reason, rather than emotion’ will dictate

the conduct of the litigation." Id. at 263 (quoting Kay, 499 U.S. at

437). Because a parent-attorney’s representation of his child was akin

to pro se representation, we employed the rationale of Kay to find that

the parent-attorney representation of a child in an IDEA case fell

within the "special circumstances" exception barring fees where such

an award would be unjust. See Hensley v. Eckerhart, 461 U.S. 424,

429 (1983). 

But the principles of Kay and Doe, which were applied to deny a

prevailing party attorneys fees under fee-shifting statutes, do not

apply in circumstances where entities represent themselves through

in-house or pro bono counsel. In Kay, the Supreme Court explained

the distinction: "[A]n organization is not comparable to a pro se litigant because the organization is always represented by counsel,

whether in-house or pro bono, and thus, there is always an attorneyBOND v. BLUM 19
client relationship." 499 U.S. at 436 n.7. When a member of an entity

who is also an attorney represents the entity, he is in an attorneyclient relationship with the entity and, even though interested in the

affairs of the entity, he would not be so emotionally involved in the

issues of the case so as to distort the rationality and competence that

comes from independent representation. Accordingly, a State’s own

attorneys representing the State may be awarded attorneys fees under

a fee-shifting statute. See Wisconsin v. Hotline Indus., Inc., 236 F.3d

363 (7th Cir. 2000). And in-house counsel representing the corporation for whom they work may also be awarded attorneys fees. See

Textor v. Bd. of Regents of Northern Ill. Univ., 711 F.2d 1387, 1396

(7th Cir. 1983) ("Defendants chose to hire in-house counsel because

that was the most efficient means of handling a large amount of legal

work. . . . [F]or every hour in-house counsel spent on this case, defendants lost an hour of legal services that could have been spent on

other matters"). 

Though representation of a law firm by one of its members presents an increased risk of emotional involvement and loss of independence, the law firm still remains a business and professional entity

distinct from its members, and the member representing the firm as

an entity represents the firm’s distinct interests in the agency relationship inherent in the attorney-client relationship. Although a given representation of a law firm by one or more of its members could suffer

from a lack of independence, there is no indication in this case of a

relationship that tended to distort independent judgment, as existed in

Doe. 

Because the district court indicated that it was inclined to award the

law-firm defendants fees, although not all the fees requested, and

would have done so but for the pro se prohibition, we now remand

this case to authorize, but not require, the district court to award § 505

fees if it determines, in its discretion, to do so. 

V

The law-firm defendants also contend that the district court erred

in denying their motion for sanctions under Federal Rule of Civil Procedure 11. In denying their motion, the district court stated, "It

appears well settled that unless a Rule 11 motion is filed in accor20 BOND v. BLUM
dance with the 21 day ‘safe harbor’ warning provision, it cannot be

granted." The court, however, did not have the benefit of our decision

in Rector v. Approved Fed. Savings Bank, 265 F.3d 248 (4th Cir.

2001), which had been decided only shortly before the court ruled. In

Rector, we held that the safe harbor provision was not jurisdictional

and could be waived if not properly asserted. 

Without expressing any opinion on how the motion for sanctions

should be decided, we remand this issue to the district court for further consideration of the motion, taking into account our decision in

Rector. 

Accordingly, the judgment of the district court is 

AFFIRMED IN PART AND VACATED

AND REMANDED IN PART.

BOND v. BLUM 21