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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Copyright - Statutory Damages - Internet Library of Law and Court Decisions - Updated October 14, 2007

No. 97 Civ. 1140, 1998 U.S. Dist. Lexis 10201 (S.D.N.Y., July 10, 1998)

Unauthorized posting on organization's website of photographs plaintiff took at organization events held to constitute copyright infringement. Such infringement was not willful, however, because the defendant organization did not know who took the photographs at the time they were posted on its site, because plaintiff, on prior occasions, had authorized defendant's use of other photographs he had taken, and because of the parties' apparent confusion over the organization's policies concerning appropriate use of photographs taken at organization events. As a result, plaintiff was only awarded damages in an amount equal to the statutory minimum of $500 for each infringement.

No. 95 C2154, U.S. Dist. Lexis 11789, 13 F. Supp. 2d 782 (N.D. Ill., July 29, 1998)

Court holds that unauthorized commercial distribution of shareware posted on the Internet in violation of express restrictions prohibiting such distribution infringed plaintiffs' copyright in the software. Because such distribution did not amount to "fair use," the court held defendant liable for statutory damages in the amount of $20,000.

Civil Action No. 04-90-KAJ (D. Del. September 26, 2005)

After a bench trial, a Federal Delaware District Court found defendant Consumer Innovations guilty of willfully infringing plaintiff's copyrights in a banner ad and related "sell page."  These materials are used by Webloyalty to promote an online "club" whose members, for a monthly fee, can purchase merchandise offered for sale through the "club" at a discount.  Defendant, a competitor, was held to have infringed plaintiff's copyrights by copying substantial portions of these advertising materials.  Such copying was held to be willful, in large part, because Consumer Innovations denied copying plaintiff's materials in the face of convincing evidence to the contrary.  As a result, the Court awarded plaintiff statutory damages of $50,000, comprised of $25,000 for each act of infringement, together with a significant portion of the attorneys' fees expended by plaintiff in prosecuting this action.  In setting the amount of such damages, the Court took into account both the absence of any evidence that plaintiff had been injured by defendant's activities, as well as evidence that defendant generated only $1,000 in revenue from its use of the promotional materials at issue.

Quick Hits

BMG Music, et al. v. Cecilia Gonzalez
438 F.3d 888 (7th Cir., December 9, 2005)

Affirming the decision of the court below, the Seventh Circuit finds defendant Cecilia Gonzalez (“Gonzalez”) guilty of copyright infringement because she downloaded and retained on her computer over 1370 copyrighted songs.  The Court rejected Gonzalez’ contention that she was engaging in a permissible fair use by downloaded the songs to sample and purchase if they appealed to her.  In finding defendant guilty of copyright infringement, the Court made no distinction between songs Gonzalez owned at the time of her download, subsequently purchased, or never owned.  Said the Seventh Circuit:

Although BMG Music sought damages for only the 30 songs that Gonzalez concedes she has never purchased, all 1000+ of her downloads violated the [copyright] statute.  All created copies of an entire work.  All undermined the means by which authors seek to profit. … With all of these means available to consumers who want to choose where to spend their money, downloading full copies of copyrights material without compensation to authors cannot be deemed ‘fair use.’

The Seventh Circuit accordingly affirmed the lower court’s award to BMG of statutory damages of $22,500 on its motion for summary judgment.  This represented the minimum statutory damage award permitted under the Copyright Act of $750 for each of 30 works Gonzalez was held to have infringed.  Importantly, this was the relief requested by BMG, and not the result of the trial court’s exercise of its discretion as to an appropriate damage award.  BMG elected to seek damages for only those songs Gonzalez downloaded which she admitted she did not own or purchase, either before or after downloading.

In reaching this result, the Seventh Circuit rejected defendant’s claim that the lower court erred in failing, under Section 504 of the Act, to reduce this statutory damage award because defendant did not believe her acts constituted infringement.  Such a defense is not available where the infringed works, such as those at bar, bear an appropriate copyright notice.  This was true notwithstanding the fact that the actual copies Gonzalez copied did not themselves contain such notice.

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188 F. Supp. 2d 398 (S.D.N.Y. 2002)

District Court awards $46,015 in statutory damages, attorney’s fees and court costs as a result of the copying of its website’s source code by a direct competitor, who utilized the same to operate a competing website. Of import, the court determined that a Web site's source code is considered "published" when the site goes live on the Internet. As Getaped registered its website within three months of this date, it was entitled to statutory damages under the Copyright Act, 17 USC 505, as a result of defendants’ copying of its site, which occurred after plaintiff’s site went live, but before a copyright therein was registered. As noted by the court “both statutory damages and attorney’s fee and costs are unavailable if “(1) an infringement of copyright in a unpublished work commenced before the effective date of its registration; or (2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.” 17 USC section 412.  
The court determined that $30,000 in statutory damages was appropriate given that defendants’ conduct was “willful” within the meaning of 17 USC Section 504. In reaching this result, the court relied on the fact that defendants copied the source code of Getaped’s site, which featured a prominent copyright notice, and continued to use this content after receipt of notice of infringement from Getaped. The Court also awarded plaintiff the actual attorneys fees it incurred in prosecuting the suit under 17 USC section 505.

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