An Award of Statutory Damages Under the Copyright Act for Post-Registration Infringements? It Depends.

Goodell DeVries partner Jim Astrachan published this article in the Drake Law ReviewFull 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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Commoners in the Land of Trademarks

One of the British tabloids has taken Meghan Markle to task because she wants to trademark “archetypes” for use in conjunction with her Spotify podcast. The tabloid defiantly asserts archetypes is 470 years old. So? They write she should not be entitled to own this word. She is, however, entitled to grab a word from the dictionary and use it as a trademark to the exclusion, in category, of anyone else’s use.

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Rejection of a Trademark License in Bankruptcy does not Terminate the Licensee’s Right to Use the Trademark

On May 20, 2019, the Supreme Court answered the longstanding question of what happens to a licensee’s right to use a trademark under a license agreement if a bankrupt licensor rejects the license agreement. The Court held that a licensor’s ability to reject a license agreement does not extinguish licensee’s rights under the trademark license and therefore, the licensee may continue to use the trademark under the terms of the license agreement. Continue reading

Registration is Required Before Suing for Copyright Infringement

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.”

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Duped by Goop

Before making health and wellness claims about products, companies should make sure the claims they are asserting are accurate. Accurate does not mean that customers stand by the product and agree with the claims — the asserted claims must be backed by science. If companies are not careful, they could face a false advertising suit. Continue reading

The Use of Proper Disclaimers in Ads

We review many ads that contain very prominent headlines designed to catch the consumer’s attention and draw her into the ad to buy the advertised product.  You might ask, “What good is an ad that does not contain a prominent headline, intended to attract attention and draw in the consumer to purchase the advertised product?”  Fair question.

But from time to time we see ads that really do not deliver what they purport to offer to the consumer; ads that employ both a bold headline to suck in the consumer and a disclaimer of the offered deal in the fine print, not proximate to the headline, to tell the consumer that what is advertised is not going to be provided.  For example, a headline that offers a savings of 20% OFF EVERYTHING IN THE CATALOG, when, in fact, that ad contains a disclaimer, buried at the bottom of the ad in fine print that not “everything in the catalog” is 20% off; “restrictions apply.” Continue reading