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Entertainment Law & FinanceFeaturesCopyrightsEntertainment and Sports Law

Fifth Circuit Rejects Majority 'Independent Economic Value' Test for Infringement Damages

By Stan Soocher
November 01, 2024

Section 504(c)(1) of the U.S. Copyright Act states that a "copyright owner may elect … to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work …." In determining the amount of a statutory award — which is based on the number of works infringed, rather than the number of times those works were infringed — "all parts of a compilation or derivative work constitute one work," the statute adds.

Most of the federal circuit courts [i.e., the D.C., First, Seventh, Ninth and Eleventh Circuits] that have addressed what qualifies either as a "compilation" or as a single creative work apply an "independent economic value" analysis that looks at the market worth of the single creation as of the time when an infringement occurs.

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