Copyright Law | Expert Legal Commentary
August 7, 2008
Derek Andrew v. Poof Apparel: No statutory damages available when copyright infringement begins pre-registration
Derek Andrew v. Poof Apparel
By
Olivier A. Taillieu of Zuber & Taillieu
Under the Copyright Act, a registered copyright owner has the option to elect to recover either statutory damages or actual damages for infringement. Because actual damages are often difficult to prove, the option to elect statutory damages is extremely valuable. Section 412 of the Copyright Act, however, limits the option of statutory damages available to a copyright owner when infringement occurs prior to the registration of the copyright in question, even if the infringement also occurs after the registration. In Derek Andrew v. Poof Apparel, 528 F.3d 696 (9th Cir. 2008), the Ninth Circuit Court joined the Second, Fourth, Fifth, and Sixth Circuit in barring the option of statutory damages for ongoing infringement, that is, where infringement begins pre-registration and continues post-registration. The lesson for copyright owners is clear: get your copyright registered as soon as possible to maximize the types of recovery available to you against infringers.
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About the Author
Olivier A. Taillieu is a Partner of Zuber & Taillieu, focusing on intellectual property litigation and arbitration.
1Bouchat v. Bon-Ton Dept. Stores Inc., 506 F.3d 315, 330 (4th Cir. 2007); Troll Co. v. Uneeda Doll Co., 483 F.3d 150, 158 (2nd Cir. 2007); Mason v. Montgomery Data Inc., 741 F. Supp. 1282, 1286 (S.D. Tex. 1990).
2The court also referenced the following cases in support of this same proposition: Parfums Givenchy Inc. v. C&C Beauty Sales Inc., 832 F. Supp. 1378, 1394 (C.D. Cal. 1993); Mason v. Montgomery Data Inc., 741 F. Supp. 1282, 1286 (S.D. Tex. 1990).
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