Takeaway: Register your copyrighted works early!
In a recent opinion out of the Fifth Circuit Court of Appeals, the Court determined that statutory damages for copyright infringement are barred where the first mode of infringement of a copyright (reproduction) pre-dates the copyright’s registration, which would traditionally bar statutory damages under 17 U.S.C. Section 412, and a second mode of infringement (distribution) post-dated the same registration, the latter of which would traditionally be a fact pattern where statutory damages would be permitted. The issue was whether a different mode of infringement by the same defendant post-registration would permit an award of statutory damages for the second mode of infringement even though the same defendant began its infringing activity, in a different manner, before the copyright registered.
The Fifth Circuit determined that no statutory damages were available at all to the plaintiff, stating, “section 412 bars statutory damage awards when a defendant violates one of the six exclusive rights of a copyright holder preregistration and violates a different right in the same work after registration.” Slip Op. at 10. The Court did note that “if there were a substantial gap in time between preregistration and postregistration infringement,” it could be a viable distinction that would allow post-registration statutory damages. Slip Op. at 10 n.4. The opinion is here.
