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Here’s a fun news bite for today.  CNET reports that English rock band Def Leppard couldn’t come to terms with Universal Music on how much revenue the band can get from digital downloads of its songs, so it’s recording identical “covers” of its songs.  Def Leppard would own the masters of the “covers” and therefore control the financial terms of its distribution, including through digital downloads.  Clever, no?

Under U.S. copyright law, a musician may cover a song and distribute the recording so long as he gets a license (called a mechanical license) and pays a standard royalty fee to the song’s publisher.  The mechanical license can’t be denied.  The fee is 9.1 cents per song distributed for songs under five minutes and 1.75 cents per minute or fraction thereof over five minutes.  It’s not a bad price to pay for gaining control over rights to distribute a song.  Whether fans will think the covers are up to snuff is another matter.

 

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Photographer barred from claiming statutory damages and attorneys’ fees for copyright infringement of unregistered photographs — Davis v. Tampa Bay Arena, Ltd., 2012 WL 2116136 (M.D. Fla. June 11, 2012)

This case is a good illustration of a basic concept in copyright litigation.  If you want to preserve the right to seek statutory damages and attorneys’ fees in case someone infringes on copyrights you own, make sure you register the copyright with the U.S. Copyright Office.

The plaintiff (“Davis”) photographed events at the Tampa Bay Times Forum under contract with the owner of the Forum (the “Forum”). The contract allowed the Forum use Davis’ photos for limited purposes, but apparently, publishing the photos on its Facebook page was not one of them.  Davis maintained ownership and copyright of all the photos he took at the Forum’s events.  Davis sued the Forum for copyright infringement for posting 255 of his photos on the Forum’s Facebook page, where other users could download the photos free of charge and without restriction.

In the face of as motion to dismiss filed by the Forum, the court let most of the claims in Davis’ complaint proceed because factual allegations in a complaint are assumed to be true at that early stage of the case.  However, Davis admitted that he had a registration certificate for only 40 of the 255 photographs.  The court therefore dismissed Davis’ infringement claims for statutory damages and attorneys’ fees for based on the 215 photographs for which Davis did not allege he had a registration certificate.

LegalTXT Lesson:  The takeaway from Davis is pretty straightforward.  A copyright registration with the U.S. Copyright Office is required to recover statutory damages and attorneys’ fees for copyright infringement.  Without being able to recover statutory damages, the copyright holder has to prove actual damage or profit from the alleged infringement, which could be a difficult exercise.  The prospect of shifting attorneys’ fees to the loser in a copyright infringement case also gives the copyright holder added leverage.  Consult an attorney to make sure you satisfy all the requirements for bringing a copyright infringement action.