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Ninth Circuit Examines Copyright Liability Merch Photos Case
When, as is often the case, actual copyright damages are difficult to prove, statutory damages may provide the best option for recovery. Recently, in Friedman v. Live Nation Merchandise Inc., 119 U.S.P.Q.2D (BNA) 1852 (9th Cir. 2016), the U.S. Court of Appeals for the Ninth Circuit considered, among other things, two issues greatly affecting the amount of statutory copyright damages: 1) willfulness; and 2) the number of separate awards available for downstream infringements.
Section 504(c)(1) of the Copyright Act, 17 U.S.C. §504, states:
(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, 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 and severally, in a sum of not less than $750 or more than $30,000 as the court considers just.
Section 504(c)(2) provides that, in a case where the plaintiff establishes willful infringement, “the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000.” This subsection also provides that, in a case of innocent infringement, the court may reduce the award to not less than $200. (Pursuant to §412 of the Copyright Act, statutory damages are not available for any infringement of an unpublished work that began prior to the effective date of the registration of copyright in a work, or, if a published work, for any infringement occurring after publication and before the effective date of its registration, unless registration was made within three months of publication. Thus, timely registration is crucial to the availability of statutory damages.)
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