Punitive Damages for Copyright Infringement - a Judicial Dialogue

As you will recall, the Copyright Act provides that statutory damages are available if the work is registered within three months of first publication or prior to the infringement. Statutory damages of up to $30,000 per infringement, or if willful, up to $150,000 per infringement, are now the statutory limits.
The Courts have held that, because of this statutory scheme, punitive damages are not available to a plaintiff in copyright infringement cases. They have interpreted the statutory damage willfulness concept as a substitution for punitive damages.
However, a recent decision has re-opened the subject a "tiny bit," and has permitted a complaint seeking punitive damages to proceed. The case, Blanch v. Koons is in the U.S. District Court for the Southern District of New York.
Judge Stanton, in granting a motion by plaintiff to add the claim for punitive damages, specifically stated that he did "not forecast any favorable view of plaintiff's position: the present weight and reason of the law (favoring registration) seems strongly against it. I simply allow the argument to be heard on the facts." PUNITIVE DAMAGES
What led the Court to re-open what appears to be a clear-cut prohibition against punitive damages? The Court referred to two other recent decisions in the Southern District of New York that "suggested" punitive damages may be available because the Copyright Act "logically" permits it in cases where the plaintiff seeks actual damages and profits, rather than statutory damages for willful or malicious infringement. In such an event, these courts stated, the public policy rationale to prohibit punitive damages would not be correct.
In any event, those cases were decided without actually reaching the issue. (One awarded statutory damages, and the other found no malice or ill will, and thus punitive damages could not be awarded in either, even if available.)
Judge Stanton did not decide the issue one way or the other. He simply permitted the case to go forward to allow the argument to be heard. Perhaps it will eventually become part of the dialogue and lead to a change in what is perceived to be existing law.


Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq@aol.com.