17.22 COPYRIGHT—DAMAGES (17 U.S.C. § 504)
If you find for the plaintiff on the plaintiff’s copyright infringement claim, you must determine the plaintiff’s damages. The plaintiff is entitled to recover the actual damages suffered as a result of the infringement. In addition, the plaintiff is also entitled to recover any profits of the defendant attributable to the infringement. The plaintiff must prove damages by a preponderance of the evidence.
Give this instruction along with Instruction 5.1 (Damages–Proof), Instruction 17.23 (Copyright—Damages—Actual Damages) and Instruction 17.24 (Copyright—Damages—Defendant’s Profits). Under 17 U.S.C. § 504(c)(1) the plaintiff may "elect, at any time before final judgment is rendered" whether to seek actual or statutory damages. See Los Angeles News Serv. v. Reuters Television Intern., 149 F.3d 987, 995 (9th Cir.1998). If the copyright owner elects to recover statutory damages, the owner cannot also recover actual damages. See Nintendo of America, Inc. v. Dragon Pacific Int’l, 40 F.3d 1007, 1010–11 (9th Cir.1994) (explaining the punitive purpose of statutory damages and the compensatory purpose of actual damages).
Section 504(b) provides that the copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In lieu of these, the plaintiff may elect to recover statutory damages. See Instruction 17.25 (Copyright—Damages—Statutory Damages).
The copyright law allows the award of compensatory damages and infringer’s profits. Polar Bear Productions, Inc. v. Timex Corp., 384 F.3d 700, 708 (9th Cir.2004) (actual damages must be suffered "as a result of the infringement"; recoverable profits must be "attributable to the infringement"; Eales v. Envtl. Lifestyles, Inc., 958 F.2d 876, 880 (9th Cir.1992). See also Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505, 512 n.5 (9th Cir.1985).
When injury is shown, but neither profits nor damages can be proved, statutory damages are mandatory. See Russell v. Price, 612 F.2d 1123, 1129–30 (9th Cir.1979). See also Pye v. Mitchell, 574 F.2d 476, 481 (9th Cir.1978). When the copyright owner fails to register its copyright before the infringement, it can recover only actual damages and profits and cannot seek statutory damages. Polar Bear Productions, 384 F.3d at 708.