copyright damages

Miley Cyrus Case Shows Importance of Early Copyright Registration

A recent copyright case, May v. Sony Music Entm't and Cyrus, involving a top-of-the-charts song illustrates the importance of early copyright registration, before any infringement begins.

Later registration will not preclude suit, but it will limit the relief that can be collected.  In some cases, that limitation may turn what seems like a winning case into a loser.

The case also highlights an effective strategy for those defending against copyright infringement claims, especially in cases involving “copyright trolls.”

Lawsuits are about more than who is liable – they are also about remedies, including how much to pay in damages.  If there is a way to limit the awardable damages, that can go a long way towards disposing of a suit.

Partial Dismissal of Copyright Claims Teaches Additional Strategies to Deal with Trolls

We have previously written about strategies to defend against claims by copyright trolls, Copyright Case Teaches How to Deal with Trolls. A recent decision by a federal court in New York, Minden Pictures, Inc. v. Buzzfeed, Inc. (S.D.N.Y. 2019), teaches some further valuable strategies to deal with such claims.   

Minden Pictures is a wildlife and nature photo licensing agency that has filed 36 copyright infringement lawsuits since 2010.  In this case, Minden alleged that the copyrighted photographs were displayed on Buzzfeed’s website at various times since 2011.  Buzzfeed moved to dismiss, and the district court granted much of Buzzfeed’s various dismissal motions.

One key ruling was that the three-year statute of limitations applied to any pictures posted more than three-years prior to suit.  Minden tried to avoid the statute of limitations by invoking the Second Circuit’s “discovery rule.”  But the court ruled that as a sophisticated party that had brought numerous copyright suits, Minden was expected to exercise considerable diligence to protect its rights.  It could have discovered the infringements had it reviewed Buzzfeed’s site.

Other rulings include dismissal of conclusory allegations of willful infringement, barring of statutory damages (and attorney’s fees) for pictures that had not been registered before infringement, and limiting statutory damages to one award for an entire “collection” of works registered as such.

The overall strategy highlighted by the Minden decision is that, even if one cannot achieve full dismissal of a troll’s case, paring down the claims as much and as early as possible can be an effective and useful strategy.

Copyright Case Teaches How to Deal with Trolls

A recent decision dealt with a “copyright troll,” an attorney that had filed over 500 copyright cases in the Southern District of New York alone.  Pereira v. 3072541 Canada Inc.  Although the case denied attorney’s fees to the defendant, the history of the case recites several procedural steps that defense counsel used to thwart the plaintiff, who had sought a substantial settlement ($25,000) largely on the procedural burden of litigating the case.

The case teaches valuable lessons in how to effectively deal with a troll

Photograph Case Decision Points Out Limits of Copyright Claims and to a Defense Strategy

 

There has been an explosion of copyright cases involving infringement of photographs, many involving small claims to one or a few photographs with little commercial value.  How does one defend against such a case?  A recent decision of a New York federal court points to an effective defense strategy.

Typically a case involves a professional photographer (or photograph licensing organization) alleging that it owns the copyright in a photograph that was then taken by a website or other user without paying a royalty fee.  Some attorneys have even turned this into a cottage industry, leveraging the burden of litigation to extract large settlements.  But the recent decision in Fameflynet, Inc. v. The Shoshana Collections, LLC (S.D.N.Y. 2018) may limit the effectiveness of such suits – and points to a strategy to defend them.

Fameflynet involved a typical claim − copying a celebrity photograph on the defendant’s website.  The court found the infringement to be willful.  But in awarding damages, it reasoned that the presumptive damages were only treble the license fee for the photograph − $75.  And since the Copyright Act requires a minimum of statutory damages of $750 for willful infringement, that is what plaintiff was awarded.

The court also awarded about $17,000 in attorney’s fees – much less than the $68,000 sought.  Apart from finding plaintiff’s hourly rates excessive, the court found many hours billed unnecessary, because the same firm had used form pleadings from prior similar cases.

The fairly nominal award points the way to an effective strategy in dealing with such cases:  ascertain the license fee and proffer an offer of judgment under Rule 68 for treble the fee or $750, whichever is greater.  Such an approach might have saved the defendant substantial fees, both its own and the plaintiff’s.