I have covered copyright infringement suits on the blog. Here is a story regarding two celebrities Keri Hilson and Mary J. Blige who have been sued for copyright infringement. Pay attention to the damages sought here by the Plaintiff who instituted the suit. The Plaintiff seeks “an accounting for all singles and albums sold in all formats, royalties and an accounting of publishing income derived from using the song in advertisements.”
This is not uncommon in a suit of this kind where the parties are music professionals. It is also where things gets nasty.
What law Governs Copyright Damages/Accounting?
17 U.S.C. § 504 governs the recovery of damages and profits in a copyright infringement action.
What Does the Law Do?
If Plaintiff prevails in lawsuit, it allows the Plaintiff to recover either injunctive and/or compensatory damages. The easier part is obviously the injunctive relief. The court can say “stop selling or singing the ‘Take Me as I am Song” any and everywhere. The challenging part is how do we determine what is owed Plaintiff, the compensatory part?
What Kinds of Compensatory Damage Can Plaintiff Receive?
Plaintiff can opt for Actual Damages and profits OR Statutory damages.
What is Actual Damages and Profits all about?
17 USC § 504(b) (the copyright law) says Plaintiff can get actual damages suffered as a result of the infringement AND any profits attributable to the infringement that were not taken into account when calculating actual damages.
Plaintiff must prove:
- Defendants (Keri & MJB’s) gross revenue from the song was, for example, $50 million.
Keri and MJB (defendants) must prove:
- Their deductible expenses and any element of profit not attributed to the infringement. So, the defendants here will say, “yes the song made $50million but we had so many expenses deducted that we only made $1million so you should get what the court determines is appropriate off $1million not $50million.”
It’ s a dual burden for the parties. When all is said and done, we should emerge with Keri and MJB’s net profits which will then be paid to Plaintiff.
What about the Statutory Damages?
- § 504(c)(1) of the statute permits “statutory” damages. It means the law essentially gives a range of what you get. It’s prescribed, already.
- § 504(c)(2) of the statute says if Keri & MJB “willfully” infringed on the Plaintiff’s copyright, then Plaintiff can recover enhanced statutory damages. So, if willful, the court would not allow the defendants to subtract their federal income taxes, overhead expenses and/or certain other expenses.
That is it from me, for now. Read about the lawsuit on Allhiphopnews.com.
‘Take Me as I am’
Fashionentlaw™ is the brainchild of Uduak Oduok (Ms. Uduak), an ex-fashion model and industry veteran turned Fashion and Entertainment lawyer. The law blog discusses hot topics in pop culture arising primarily out of the fashion industry.
As a legal practitioner, Ms. Uduak has over two decades of experience counseling individuals and businesses within and outside the creative community. She has counseled designers, apparel manufacturers, models, photographers, retailers, graphic designers, musicians, public relations specialists, and athletes, among others, on diverse legal issues including business formation, licensing, trademark and copyright matters, contracts, intellectual property and contract disputes. She is also an Adjunct Professor.
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