Intellectual Property Law

SDNY: Pleading New Post-Registration Copyright Infringement

By Marty Schwimmer

IDEA v PETA (SDNY August 298 2009): Plaintiff, no doubt aware that statutory damages are only available for post-registration copyright infringements that are not part of a continuing, ongoing series of infringing acts of the same kind as those engaged by defendant prior to the effective date of registration, alleged in its amended complaint that:

Upon information and belief, PETA has commenced new infringements, and prepared and exploited new and materially different Infringing Materials since the effective date of registration of copyright in the Work, which acts are not part of a continuing, ongoing series of infringing acts of the same kind as those engaged in by PETA prior to the effective date of registration of the copyright in the Work, but instead are separate infringements postdating the effective date of registration of the copyright in the Work.

There were no factual allegations to support this conclusory assertion, and thus dismissed plaintiff's claim for statutory damages and fees. Note that had plaintiff come up with some factual allegations pre-motion, it may have been granted leave to amend, but didn't, so wasn't.

Decision Peta

Full post as published by Trademark Blog on September 10, 2009 (boomark / email).