Tuesday, December 5, 2023

4th Circuit: ‘Hurt Feelings’ Not Part of Actual Damages

I’ve written previously on the increase in copyright litigation (here and here), especially between artist against artist. Ray Dowd over at his Copyright Litigation Blog reminds us what can happen when an artist does not register her/his work with the copyright office before her/his work is infringed by another person or entity. Remember that under US Copyright law, in order to have access to statutory damages and attorney’s fees, the plaintiff must have registered her/his work with the copyright office before the infringement, otherwise, the plaintiff must prove actual damages (under actual damages 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).

Dowd discusses a recent decision by the Fourth Circuit Court of Appeals, where the court overturned a recent decision where an artist was awarded $201,550 in actual damages based on claims of conversion and copyright infringement against another artist. The Fourth Circuit found that the artist had not proved actual damages sufficient to support the jury’s award and reversed for remittitur or trial. The case is Hofmann v. O’Brien. Plaintiff Hofmann’s website can be viewed here, and defendant O’Brien’s here.


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