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72 Drake L. Rev. Discourse 1 (2021-2023)

handle is hein.journals/dralours2022 and id is 1 raw text is: AN AWARD OF STATUTORY DAMAGES UNDER THE COPYRIGHT ACT FOR POST-REGISTRATION INFRINGEMENTS? IT DEPENDS. James B. Astrachan* ABSTRACT In many cases of copyright infringement, the plaintiff is only able to afford to bring an action for infringement if they are entitled to ask the court to award statutory damages and attorney's fees should they prevail in establishing infringement. While there might be a connection between the amount of statutory damages a court may award, in its discretion, the profits of the infringer and the actual damages, if any, suffered by a copyright owner, 17 U.S.C. § 504(c) allows a court to award between $750 and $150,000 for each work infringed.1 The statute does not require the plaintiff to establish what actual damages they may have suffered from the infringement or what profits the defendant reaped.2 Section 412 requires, however, that for a plaintiff to be entitled to statutory damages and attorney's fees, it must register the infringed work with the United States Copyright Office before the infringement occurred, or in the case of a newly published work, within three months after first publication.3 Courts do not always apply a bright-line test to determine a plaintiff's entitlement to statutory damages and attorney's fees based on when the infringement occurred, relative to the time of registration. Some courts have even developed theories that circumvent the requirements of section 412. Application of these theories, while not widely accepted, serves to prolong litigation and results in increased costs. Most courts that have considered a plaintiff's entitlement to statutory damages and attorney's fees in compliance with section 412 have adopted a bright-line test that when infringement occurs prior to registration, statutory damages and attorneys'fees cannot be recovered for acts of infringement of that work after registration.4 Other courts, however, have examined the duration between the first and subsequent acts of * James B. Astrachan has been an adjunct professor of law since 1998, teaching trademark and unfair competition law, copyright law, and Second Amendment law at the University of Maryland Frances King Carey School of Law and the University of Baltimore School of Law. He is the co-author of the six volume Law of Advertising and Mass Communications, published by LexisNexis Matthew Bender. 1. 17 U.S.C. § 504(c). 2. 17 U.S.C. § 505. 3. 17 U.S.C. § 412. 4. See, e.g., Bouchat v. Bon-Ton Dep't Stores, Inc., 506 F.3d 315 (4th Cir. 2007). 1

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