Thursday, March 03, 2005

Copyright Infringed? You Could Claim Punitive Damages; "Retirement" on a Roll

March 2, 2005

In this newsletter:


Judge Louis Stanton of the United States District Court for the Southern District of New York recently allowed a plaintiff to amend her complaint in order that she may seek punitive damages for a claim of copyright infringement (Blanch v. Koons, 329 F.Supp.2d 568, (S.D.N.Y. 2004)).

Plaintiffs have traditionally not been allowed to recover punitive damages for copyright infringement. The goal of punitive damages is to allow plaintiffs in a civil action to recover above and beyond their actual damages when it can be shown that the defendant's actions were particularly egregious. The effect of punitive damages is to punish a defendant for conduct that was deliberate, a remedy not available in civil cases unless the plaintiff is able to demonstrate to the jury that defendant's conduct was of a level deserving of punishment.

Copyright law authorizes a plaintiff to claim statutory damages up to $150,000 if the defendant's conduct was willful and if the copyright was registered with the copyright office prior to the infringing act (17 U.S.C.S. §504). These statutory damages have traditionally been viewed as serving the same purpose as punitive damages, thereby foreclosing plaintiffs from recovering punitive damages in copyright infringement cases. In this case, however, statutory damages were not available because the infringement occurred before registration of the copyright.

In allowing the plaintiff to amend her complaint to seek punitive damages the judge followed a decision in the District Court for the Southern District of New York in which it was held that the Copyright Act did not itself prohibit punitive damages (TVT Records v. The Island Def Jam Music Group, 262 F.Supp.2d 185, 187, (S.D.N.Y. 2003)).

Judge Stanton indicated that the primary reason for granting the plaintiff leave to amend the complaint was that the holding in TVT Records requires that the plaintiff be given the opportunity to "prove malice and raise squarely the question whether punitive damages are available to her". This opinion does not mean that punitive damages will be awarded; it only means that the issue will be heard.


Our client, Corner Stone Pictures, has begun production of its film, "Retirement," starring Billy Burke, Bill Cobbs, Peter Falk, George Segal, Rip Torn, and Coolio. The film will be shot in Miami, New Orleans and Las Vegas.

Described as "Grumpy Old Men" meets "Road Trip," the film follows Fitzy and his three retiree friends on a mission to stop Fitzy's daughter from marrying the wrong guy.


The MethodFest independent film festival has accepted two clients' films into its screening competition, held April 1-8 in Calabasas, Calif.

The film "Zooey," written and directed by our client, Sherman Lau, is an urban love story of a young prostitute and her husband trying to escape their life on the street. "Zooey" stars newcomers Sarah Louise Lilley and Xavier Jimenez. The official website is

The film, "Fighting Words," written and directed by our client, Paul Edwards. The film centers around a gifted poet who is discovered by an attractive publisher. The two embark on a relationship that teaches both that love is more than words. The film stars C. Thomas Howell, Jeff Stearns, Tara D'Agostino and Fred Willard. The official website is

For more information, visit

Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.

Copyright 2005, Mark Litwak