17.32 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.

Comment

Give this instruction along with Instructions 5.1 (Damages—Proof), 17.33 (Copyright—Damages—Actual Damages), and 17.34 (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. 17 U.S.C. § 504(c)(1); see also Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 699 (9th Cir.2008); L.A. News Serv. v. Reuters Television Int'l, 149 F.3d 987, 995 (9th Cir.1998). If the copyright owner elects to recover statutory damages, the owner cannot also recover actual damages. 17 U.S.C. § 504(c); see also Instruction 17.35 (Copyright—Damages—Statutory Damages); Derek Andrew, 528 F.3d at 699; Nintendo of Am., Inc. v. Dragon Pac. Int'l, 40 F.3d 1007, 1010-11 (9th Cir.1994) (explaining punitive purpose of statutory damages and 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, as well as any profits of the infringer that are attributable to the infringement and that are not taken into account in computing the actual damages. 17 U.S.C. § 504(b); see also Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 708 (9th Cir.2004) (noting additionally that "actual damages must be suffered 'as a result of the infringement,' and recoverable profits must be 'attributable to the infringement'"); 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); Pye v. Mitchell, 574 F.2d 476, 481 (9th Cir.1978). When the copyright owner fails to register its copyright before commencement of the infringement, it can recover only actual damages and profits and cannot seek statutory damages. See Derek Andrew, 528 F.3d at 699; Polar Bear Prods., 384 F.3d at 707 n.5.