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Fed. Claims Ct. decision on (c) damages and derivative works

by Barry Werbin

Once again, we are blessed with another interesting case from the Court of Federal Claims (remember Gaylord v. US - the Korean War memorial case?), which has opined on what constitutes a derivative work and statutory damages. The case is Cohen v. The United States (Fed Cl. 6/27/12). A doctor sued the US (acting through FEMA) for using without authorization seven of his publications, consisting of a dissertation and six books or articles on mentoring. He sought statutory damages. FEMA admitted it made copies of at least two documents. For purposes of statutory damages, the Court found that the six post-dissertation works closely tracked the work of his dissertation because each focused on and contained significant portions of the dissertation. The Court thus found these six works to be derivative works. Because only statutory damages were sought, the Court held that only one “work” was in issue for purposes of statutory damages.

In addition, the Court held that Cohen cannot recover enhanced statutory damages for alleged willful infringement by the government/FEMA because the US had not waived sovereign immunity for punitive type damages pursuant to 28 U.S.C. § 1498(b), which expressly refers to waiver of immunity only for “reasonable and entire compensation as damages for such infringement, including the minimum statutory damages as set forth in section 504(c) of title 17 [28 U.S.C. § 1498(b)].” The government's waiver of sovereign immunity was only for reasonable and actual compensation for what the copyright owner lost. While Cohen argued he was allowed to seek damages anywhere within the range of basic statutory damages under Section 504(c) [$750 - $30,000], the Court sided with the government and held that any award had to be a minimum statutory damages award of $750. The Court also found that even if Cohen was correct, he failed to provide evidence of entitlement to additional statutory damages over the minimum.