“…no plagiarist can excuse the wrong by showing how much of his work he did not pirate.” These words were written by Judge Learned Hand in 1936. His point was that a taking of someone else’s expression will not be excused merely because it is insubstantial in quantity when held up for comparison to the infringing work. Continue reading →

A client recently had the good fortune to reduce its financial exposure for copyright infringement from $3 million to a little over $75,000. Still, $75,000 is a lot of money to pay for unauthorized reproduction of twenty photos that belonged to someone else. But on the down side, in addition to statutory damages of up to $150,000 per photo, there also was the possibility of an award of attorney’s fees, and because the facts as known pointed to the conclusion that this client was aware that the photos were not its to borrow, it was quite likely a jury would have found the infringement to be willful and would, and could, have awarded $150,000 per photograph.  Continue reading →

Goodell DeVries partner Jim Astrachan published this article in the Drake Law Review. Full text is available here.

ABSTRACT

In many cases of copyright infringement, the plaintiff is only able to afford to bring an action for infringement if they are entitled to ask the court to award statutory damages and attorney’s fees should they prevail in establishing infringement. While there might be a connection between the amount of statutory damages a court may award, in its discretion, the profits of the infringer and the actual damages, if any, suffered by a copyright owner, 17 U.S.C. § 504(c) allows a court to award between $750 and $150,000 for each work infringed.¹ The statute does not require the plaintiff to establish what actual damages they may have suffered from the infringement or what profits the defendant reaped.²

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The United States Supreme Court held in Fourth Estate Public Benefit Corp v. Wallstreet.com, LLC, that the Copyright Office must either issue a (1) copyright registration certificate or (2) refuse to register a copyright before a copyright owner can sue for copyright infringement.

Prior to this decision, there was a split among the circuits concerning the interpretation of the first sentence of Section 411(a) of the Copyright Act which states, “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.”

The Ninth Circuit recently ruled in its case concerning monkey selfie photographs.

As many remember, in 2011, while visiting an Indonesian rainforest, nature photographer David Slater left his camera unattended. According to Slater, a monkey known as Naruto, picked up Slater’s camera and took multiple “selfies”. The selfies went viral.

After Slater used the photographs in a book that he published, PETA sued Slater for infringing the monkey’s copyright. The questions became: Does PETA have standing to sue on behalf of Naruto? If so, is a monkey an author for purposes of the Copyright Act of 1976?

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A friend recently called about a letter she had received claiming that she was infringing a photographer’s copyrights in an image she had used in her company’s website and social media sites. In addition to requiring that she cease use of the image, the letter demanded payment of several thousand dollars for the alleged unauthorized use of the photograph. My friend explained that the image was being used under a Creative Commons license, so she didn’t understand what basis there could be for the photographer’s infringement claim.

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Copyright protects original works of authorship fixed in a tangible medium of expression. 17 U.S.C. §102(a). “Originality” and “authorship” require independent creation and a modicum (i.e. minimal level) of creativity. “Fixation” requires that a work be fixed in a tangible format in which it can be perceived, reproduced or communicated, either directly or with the aid of a machine or device — for example, a writing, recording, photo or video. Continue reading →