Tabberone is pronounced tab ber won
not tay ber own
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Tabberone is pronounced tab ber won |
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New Line Cinema Corp. v. Russ Berrie & Co., 161 F. Supp. 2d 293 (S.D.N.Y. 2001).
Court found defendant’s toy glove with protruding knife-like plastic blades infringed
copyright in “Freddie Krueger” character from plaintiff’s Nightmare on Elm Street films.
Plaintiff opted to recover statutory damages, and sought award up to $100,000 on grounds
infringement was willful. Court declined to find willfulness. Since statutory damages
should be commensurate with actual damages incurred, court began with defendant’s
stipulated gross revenue. Without objection from plaintiff, court held that “full absorption
method” was proper way of calculating damages award. Under such method defendant was
permitted to deduct from gross revenues “all overhead expenses in the same percentage as
the sales of infringing goods bears to its total sales.” Thus, defendant was permitted to
deduct costs associated with direct selling sales support, shipping, administration (including
customer service, computer operations and invoicing), product design, product development,
product advertising, taxes and bad debt. Court awarded plaintiff $4,108.
The burden to prove willful infringement is on the entity that owns the copyrighted material. In such a case, the copyright owner would have to show either deliberate conduct or reckless disregard of the possibility that specific actions may result in infringement. In a case where the copyright owner sustains the burden of proving infringement - and the court finds that infringement was committed willfully - the court may use discretion in increasing the award of statutory damages to a sum of not more than $150,000.00 per wotk infringed. In a similar manner, should a potential infringer be found an "innocent infringer," the court could, reduce the damage amount down to $200 per work. However, innocent infringement can be difficult to prove. |
