One Work, Three Infringers: Calculating the Correct Number of Separate Awards of Statutory Damages in a Copyright Infringement Action

One Work, Three Infringers: Calculating the Correct Number of Separate Awards of Statutory Damages in a Copyright Infringement Action

Timothy L. Warnock · 14 Vand. J. Ent. & Tech. L. 343

Introduction

Consider the following hypothetical: Warren owns the copyright in the musical composition  “Ode to My Sheepdog.” Jim, without an appropriate license, manufactures and distributes John Johnson’s recording of “Ode.” Mark, without an appropriate license, manufactures and distributes Matt Murphy’s recording of “Ode.” Charlotte, also without an appropriate license, manufactures and distributes Cat Callie’s unauthorized recording of “Ode.” Charlotte, unlike John and Mark, began manufacturing and distribution under the mistaken but good faith belief that she had permission to exploit the composition. One Stop Records, an online and retail record store, stocks and sells all three versions of “Ode.” All three versions are very popular, and One Stop has sold thousands of copies of each.

Warren sues One Stop for copyright infringement and elects to recover statutory damages.  Section 504 permits Warren to recover an award of damages between $750 and $30,000. The court may increase that award to a sum of $150,000 if the infringer committed these acts willfully, or the court may reduce the award to a sum of not less than $200 if the infringement was innocent. How many separate awards of damages may he recover? Section 504(c)(1) provides:

Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purpose of this subsection, all the parts of a compilation or derivative work constitute one work.

Is Warren entitled only to recover one award because all three versions of “Ode” infringe Warren’s copyright in a single musical composition, or “work,” under the statute? Alternatively, is Warren entitled to recover three separate awards of statutory damages because Jim, Mark, and Charlotte are not jointly and severally liable for each other’s infringements?