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Raising the Stakes in Copyright Litigation: The Availability of Punitive Damages
The threat of enhanced damages, particularly in the hands of a jury, can considerably affect the strategic conduct of litigation. Assuming some merit to a claim ' at least sufficient to withstand summary judgment ' the possibility of a verdict doubled or trebled or otherwise multiplied to deter or punish perceived willful, malicious conduct, perhaps representing many times the plaintiff's actual damages or the defendants' profits, can indeed be something of a gun to the head. To some plaintiffs seeking to vindicate a perceived wrong, the prospect of punitive damages can, of course also be something akin to the brass ring, adding extra incentive that spurs pursuit of a verdict to the very end, even in a case that might otherwise settle.
Many practitioners likely assume that the sole monetary remedies under the Copyright Act are those specified in Sec, 504 of the statute, namely the copyright owner's provable losses and/or the infringer's profits, or, alternatively, statutory damages (which, by statutory formula, include possible stepped-up awards in cases of willful infringement). It was thus with some significance, and perhaps surprise, that in Blanch v. Koons, 329 F. Supp.2d 568 (S.D.N.Y. 2004), a slender decision of only seven paragraphs, a federal district judge in New York rendered a decision that granted a motion to amend the complaint in a copyright case to allow the plaintiff to seek punitive damages (not simply enhanced statutory damages). As Judge Louis Stanton's decision made clear, his ruling was largely unprecedented.
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