Statutory Damages
Author | Eric M. Stahl - Henry J. Tashman |
Pages | 41-76 |
I. Overview and Scope of Remedy
A copyright owner who proves infringement may elect to recover,
instead of its actual damages and the infringer’s prots, an award of
statutory damages within the range set out in section 504(c) of the
Copyright Act.
1
The starting range of the award is $750 to $30,000 per
work infringed, but the potential maximum rises to $150,000 per work
if the plaintiff proves the infringer acted willfully, and the potential
minimum falls to $200 per work if the defendant proves the infringe-
ment was innocent.2
A plaintiff who wishes to recover statutory damages must afrma-
tively elect that remedy and is entitled to do so “at any time before
nal judgment is rendered.”
3
The copyright owner is entitled to one
separate award of statutory damages for each work infringed and may
recover multiple awards from separate infringers of a work if they are
not jointly and severally liable for the infringement.4 The complexities
1. 17 U.S.C. § 504(c).
2. 17 U.S.C. § 504(c)(1), (2).
3. 17 U.S.C. § 504(c)(1). Issues related to the choice of remedies are discussed below
in section V of this chapter.
4. 17 U.S.C. § 504(c)(1).
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CHAPTER 4
Statutory Damages
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of determining the number of available awards of statutory damages
are discussed below.
Although the Copyright Act provides that statutory damages are to
be awarded by “the court,”5 the Supreme Court held in 1998 that the
Seventh Amendment provides a right to have a jury determine the
amount of the award if any party so requests.
6
Before 1998, trial judges
determined statutory damages in many jurisdictions.7
II. Purpose of Statutory Damages
Copyright law has long recognized the difculty of measuring the
actual harm resulting from an act of infringement. Under the 1909
Copyright Act, statutory damages were conceived as an alternative
remedy “in lieu of actual damages,” meant to provide some compensa-
tion for infringement where actual damages and a defendant’s prots
were difcult or impossible to prove.
8
The remedy was meant to be suf-
ciently exible to allow the court to award an amount it found “just,”
within the range set forth in the statute.9 Under the 1976 Copyright
Act, statutory damages require no showing that actual damages or
prots are difcult to quantify, and no showing that the infringement
in fact caused any harm.
10
The only prerequisites for recovery of statu-
tory damages are a timely copyright registration (generally, the work
5. 17 U.S.C. § 504(c)(1).
6. Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 118 S. Ct. 1279, 140 L.
Ed. 2d 438 (1998). In cases where the copyright owner les a claim against the infring-
er’s bankruptcy estate, however, the plaintiff relinquishes its right to a jury trial on the
amount of statutory damages because the bankruptcy court controls such claims as a
court of equity. See Pearson Educ. Inc. v. Almgren, 685 F.3d 691 (8th Cir. 2012).
7. See Columbia Pictures Television v. Krypton Broad. of Birmingham, Inc., 106
F.3d 284, 293 (9th Cir. 1997) (noting cases and circuit conict); rev’d sub nom. Feltner
v. Columbia Pictures Television, Inc., 523 U.S. 340, 118 S. Ct. 1279, 140 L. Ed. 2d 438
(1998). Issues related to presenting statutory damages claims to juries are discussed
in section V, infra.
8. See, e.g., Douglas v. Cunningham, 294 U.S. 207, 209–10, 555 S. Ct. 365, 79 L. Ed.
862 (1935).
9. L.A. Westermann Co. v. Dispatch Printing Co., 249 U.S. 100, 106–09, 39 S. Ct.
194, 63 L. Ed. 499 (1919).
10. See, e.g., Sony BMG Music Entm’t v. Tenenbaum, 660 F.3d 487, 502 (1st Cir. 2011).
CHAPTE R 442
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must be registered within three months of publication or before the
infringement occurs)11 and a timely election of the statutory damages
remedy in the ensuing litigation.12
The interests served by statutory damages are broader than those
served by the “actual damages and prots” remedy available under
section 504(b). Whereas the purposes of actual damages and prots are
limited to compensation and restitution, statutory damages “further
compensatory and punitive purposes, and help sanction and vindicate
the statutory policy of discouraging infringement.”13 The award may be
used to punish an infringer, as demonstrated by the availability of an
enhanced award when infringement is willful.
14
The purposes include
“restitution of prot and reparation for injury,” “discourag[ing] wrong-
ful conduct,” and “vindicat[ing] the statutory policy.”15
III. Calculating the Number of
Statutory Damage Awards
Statutory damages are subject to two potential “multipliers” that can
lead to the recovery of multiple separate statutory damage awards
and thus a substantially enhanced total recovery. First, the plaintiff
is entitled to a separate award for each “work” infringed. In cases
involving a large number of works, the result is a potentially sizable
award. A single infringer accused of illegally downloading 100 songs,
for example, faces a potential statutory damages judgment of at least
$20,000 and potentially as much as $15 million.16
11. See supra chapter 2; 17 U.S.C. § 412.
12. See infra section V.
13. Dream Games of Ariz., Inc. v. PC Onsite, 561 F.3d 983, 992 (9th Cir. 2009) (inter-
nal quotation marks omitted).
14. Chi-Boy Music v. Charlie Club, Inc., 930 F.2d 1224, 1228–29 (7th Cir. 1991).
15. F.W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 233, 73 S. Ct. 222,
97 L. Ed. 276 (1952).
16. 17 U.S.C. § 504(c)(2). See, e.g., Capitol Records, Inc. v. Thomas-Rasset, 692 F.3d
899 (8th Cir. 2012) (in successive jury trials for illegal downloading of twenty-four songs,
jury awarded statutory damages of $222,000, $1.9 million, and $1.5 million). See also,
e.g., Playboy Enters. v. Sanlippo, 1998 WL 207856 (S.D. Cal. Mar. 25, 1998) (plaintiff
43STATU TORY DA MAGE S
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