Confused about Statutory Damages in Copyright Litigation? Join the Club. Here Are Some Answers (Part I)

Confused about statutory damages in copyright litigation? You are in good company.

There are limitations on the availability and amount of  statutory damages and the parties against whom statutory damages will be individually assessed, all of which create misunderstandings by parties on both sides of the fence. Copyright holders mistakenly assert they are entitled to statutory damages for an infringement that occurs after they registered their work, even when this infringement continues a pattern of infringement that began before registration. Where multiple infringers acting together infringe one work multiple times, some copyright owners wrongly claim they are entitled to multiple awards of statutory damages individually assessed against each infringer.

Further, defendants sometimes incorrectly argue the unauthorized infringing compilations or collections they create by combining several of plaintiff’s copyrighted works are subject to only one award of statutory damages. Finally, there is considerable confusion among all parties concerning where in the range—from innocence to willfulness—infringing conduct falls and the statutory damages that will be assessed for that conduct.

I explain in this post why statutory damages are not available for infringing conduct that began before registration and continues thereafter. I also explain that the number of grants of statutory damages depends on the number of works infringed, not on the number of infringements of those works.

In the next post on this subject (Part II), I explain how courts have recently applied the one-work limitation on the number of grants of statutory damages and when it is likely that an infringer’s conduct will be found to be willful. Finally, in Part III, I explain the reasons why it is difficult to predict the statutory damages that may be awarded for infringing conduct.

The Limitations on Statutory Damages

First, what are statutory damages? They are a range of damages set by Congress a copyright owner may be able to recover in a court proceeding if the owner’s copyright has been infringed. They may be as much as $150,000 per work infringed.

No Statutory Damages for the Continuation of Post-Registration Infringing Conduct That Began Before Registration

But statutory damages are not available for the asking. You earn the right to statutory damages by registering your work on a timely basis with the United States Copyright Office. Timely registration will be gained if you register at any time before the work has been infringed. But if your work has been infringed, you only will be entitled to statutory damages if you registered the work within three months after the work was first published or distributed to the public.

Let’s turn now to the first limitation arising when the infringement continues after you register. In that instance, are you entitled to statutory damages for the post-registration infringements? Courts usually say no. The majority conclude the copyright owner may not recover statutory damages for the continuation of post-registration infringements that began pre-registration.

Mindful of these decisions, copyright owners often argue that the post-registration infringements are new, different and separate and thus are not part of the pattern of pre-registration infringements of the same work. But courts usually reject this argument. They interpret the words “infringement … commenced after the first publication” in section 412(2) of the Copyright Act of 1976 (the “Act”) to mean “the first act in a series of acts” of infringement.

One commentator suggested that a plaintiff might be able to recover statutory damages if a “qualitative new infringement occurs after registration” along with “a large lapse of time between the first bout of infringement and its post-registration successor.” But to date, no case has adopted this view.

One Award for Multiple Infringements against Multiple Infringers Who Act Together

Another misconception concerns the number of statutory damage awards the copyright owner may be awarded. A plaintiff in copyright litigation sometimes requests multiple awards of statutory damages for multiple infringements of a single work by multiple parties acting in concert or together. But section 504 (c)(1) of the Act limits a copyright owner to one grant of statutory damages in that circumstance. The section provides that a copyright owner “may elect … to recover … an award of statutory damages for all infringements involved in the action with respect to any one work…. for which any one infringer is liable individually or for which any two or more infringers are liable jointly or severally” (emphasis added).

The section means you may recover only one award of statutory damages for each work that has been infringed regardless of the number of acts of infringement, whether they are separate, isolated or occurring over many years.

The copyright owner is also restricted to one award of statutory damages against multiple infringers where they act in concert and are therefore jointly and separately liable. In determining that liability, it makes no difference if defendants engaged in the same infringing act or demonstrated the same level of willfulness or misconduct. The Act does not care about “gradations of blameworthiness.”

Other Posts About Statutory Damages

Want to read Parts II and III of this series that also clear up other common misconceptions about statutory damages in copyright litigation? See link (Part II) and link (Part III ). Want to read some later posts commenting on the decision in Sony BMG v. Tenenbaum slashing the jury’s verdict by 90%?.  Go to link and link. Want to read a post about some of the issues raised by the upcoming third trial in Capitol v. Thomas-Rasset case? Go to link.  Still have questions about statutory damages in copyright litigation and want to see a video answering those questions, go to link or want to read an article about statutory damages written for non-lawyers, go here. Also see this link (explaining when a copyrighted work qualifies as a work for purposes of fixing statutory damages) and this link (explaining the one work limitation set forth in the last sentence of 17 U.S.C. § 504 (c)(1).