Decision of Note: 6th Cir. Says No 'Magic Words' to 'Elect' Copyright Statutory Damages

The U.S. Court of Appeals for the Sixth Circuit decided that §504 of the U.S. Copyright Act doesn't require any “magic words incantation” for a copyright infringement plaintiff to choose a statutory damages award, that “[t]he word 'elect' does not by itself require formal procedures.” Smith v. Thomas, 911 F.3d 378.

Soul artist Bigg Robb (Robert Smith) sued soul artist Bishop Bullwinkle (Bernard Thomas) over an unlicensed sampling. Bigg Robb's song “Looking for a Country Girl” in Bishop Bullwinkle's “Hell 2 Da Naw Naw.” The U.S. District Court for the Southern District of Ohio awarded Bigg Robb 50% of the ownership rights to “Hell 2” and $30,000 in statutory damages. In a pre-trial filing, Bigg Robb stated, “Plaintiff is entitled to statutory damages for each instance of contributory infringement or inducement of infringement.” During the trial, he said: “I took a look at the law, it said that damages up to $150,000 could be awarded by the Court.” So we are certainly asking for that amount financially.” The Sixth Circuit noted that and added: “He also testified about the willful nature of the infringement, which is only relevant to statutory damages. Smith's invocations of the Act's willfulness enhancement and $150,000 maximum, combined with an explicit mention of 'statutory damages,' indicated his election — he did not need to cite the provision itself.”

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Stan Soocher is Editor-in-Chief of Entertainment Law & Finance, an entertainment attorney and Professor of Music & Entertainment Studies at the University of Colorado's Denver Campus. For more information: www.stansoocher.com.