Entertainment Law Outline (Downey—Fall 2009)
I. Copyright
a. Damages/Remedies
i. Damages/Attorney’s Fees
1. To get attorney’s feesàmust have a specific statute
a. §505 Copyright Act
i. Court MAY award reasonable attorney’s fees to “prevailing party”
ii. ∆s and πs are treated the same for purposes of awarding attorney’s fees
1. No requirement that prevailing ∆ show case brought frivolously or in bad faith (Fantasy v. Fogerty)
a. Overruled the idea of a “dual standard”
2. §504 Copyright Act
a. Infringer is liable for actual damages or statutory damages (§504 (a), (b))
i. Actual damages, and
ii. Profits of ∆ (infringer); or
iii. Statutory damages
b. Computing infringer’s profits
i. Copyright owner is required only to present proof of infringer’s gross revenues
ii. Infringer required to prove his
1. Deductible expenses, and
2. The elements of profit attributable to factors other than the copyrighted work
c. Statutory damages–§504(c)
i. Willful infringer has to pay more
1. Court may increase to $150k
2. Cannot deduct expenses from gross revenues in measure of profits (overhead, income taxes, etc.)
ii. Innocent infringer
1. Court may lower damages to $200
iii. Copyright owner (π) may elect at any time BEFORE FINAL JUDGMENT (anytime before judge signs judgment) is rendered to get statutory damages
1. Between $750 and $30k
a. What the court determines is “just”
2. Π can wait to see what the jury decidesà if you like it, keep it; if you don’t you can ask for statutory damages
iv. Proper unit for computing statutory damages—1 work is the CD as a whole, not
ctive question of fact for the jury
2. Judge cannot grant summary judgment on this test
ii. Extrinsic test
1. Concrete elements based upon objective criteria (experts)
2. Judge can grant summary judgment on this test
iii. Inverse ratio applies here
1. Requires a lower standard of proof of probative similarity (substantial similarity) when a high degree of access has been shown
a. Cases have not held that the other way is allowed
b. If you can prove strikingly similar—don’t have to prove access at all (Baxter/Dimmie)
3. Striking similarity—so similar as to preclude the possibility of independent creation (if you can’t show access or probative similarity)
a. Inference of access (if reasonable)—Gibb case
b. Satisfies probative similarity prong
c. Equals a presumption of copying (prima facie evidence)
i. Shifts the burden to ∆
