Jury Instructed to Render Alternative Damage Awards in Copyright Infringement Action by Wisconsin District Court
Jessica McKinney | Bloomberg Law
In a case where plaintiff alleged that a poem in the book A Cup of Chicken Soup for the Soul infringed his copyright in the poem “Faith,” the U.S. District Court for the Western District of Wisconsin determined that the jury should be instructed to render alternative verdicts on statutory and actual damages from which the plaintiff could then choose. The court reasoned that such instructions would best comport with the statutory language of the Copyright Act and the U.S. Supreme Court’s decision in Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998).
Plaintiff Alleges Infringement of Poem
Plaintiff Patrick Overton is the author of a book entitled The Leaning Tree, which includes the poem “Faith.” The copyright registration for the book was assigned to plaintiff in 1981. Claiming that a poem in the book A Cup of Chicken Soup for the Soul infringed his copyright in the “Faith” poem, plaintiff filed suit against various individuals and entities associated with the book, including Health Communications, Inc., Chicken Soup for the Soul Enterprises, Inc., Chicken Soup for the Soul Publishing, LLC, and Chicken Soup for the Soul, LLC. Plaintiff also alleged that defendant American Greetings Corp. committed infringement by publishing and selling a greeting card that included a poem that was substantially similar to his “Faith” poem. Finally, plaintiff alleged that the defendants falsely attributed the poem at issue to Barbara J. Winter, who later informed Health Communications that plaintiff was the author rather than her. Plaintiff sought both statutory and actual damages in his complaint. See Overton v. Health Communications, Inc., No. 10-CV-00701, Plaintiff’s Second Amended Complaint (W.D. Wis. Nov. 8, 2011).
Court Permits Jury to Render Alternative Damage Awards
In the instant order, the court determined that plaintiff had a right to obtain alternative jury verdicts for statutory and actual damages, and amended the parties’ proposed jury instructions to reflect its decision. The court observed that although “there appears to be no definitive answer as to the plaintiff’s right to proceed in this manner,” the plain language of 17 U.S.C. § 504(c)(1) states that a plaintiff may elect statutory or actual damages “at any time before final judgment is rendered.” Overton at 1. In addition, the Supreme Court held in Feltner that “the Seventh Amendment provides the right to jury trial on all issues pertinent to an award of statutory damages in a copyright infringement action.” Id. at 2 (citing Feltner, 523 U.S. at 347-48).
The court acknowledged that plaintiffs must usually elect a theory of recovery before submitting their cases to a jury, and that allowing a jury to render alternative damage awards would risk prejudicing defendants (who may be forced to argue inconsistent defense theories) and confusing the jury as to how to separate the damages calculations. The court concluded, however, that requiring plaintiff “to elect before trial, or even just before jury deliberations, among the two forms of damage would arguably frustrate the statute, or the Supreme Court directive, or both.” Id. Specifically, if plaintiff “affirmatively elects statutory damages, the caselaw suggests that he waives the right to later elect actual damages,” in seeming violation of the statute. Id. (citing Twin Peaks Productions, Inc. v. Publications Int’l, Ltd., 996 F.2d 1366, 1380 (2d Cir. 1993)). Conversely, if plaintiff “elects to proceed with his actual damages claim, then he is waiving the possibility of having his statutory damages decided by a jury.” Id. at 3 (citing Feltner, 523 U.S. at 347 n.5).
The court therefore determined that requiring the jury to enter alternative verdicts would be the best way to satisfy both 17 U.S.C. § 504(c)(1) and Feltner. The court noted that although the Seventh Circuit has yet to rule on the issue, the Sixth and Fifth Circuits have followed this approach. See Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267, 273 (6th Cir. 2009); Kiva Kitchen & Bath Inc. v. Capital Distributing Inc., 319 F. App’x 316, 320 (5th Cir. 2009). Accordingly, the court amended the parties’ proposed jury instructions (attached to the order) “in an attempt to set out, as clearly as possible, the jury’s role in deciding alternative damages.” Overton at 4.
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