Statutory Damages . . . . Register!!!!!

The Ninth Circuit, in Derek Andrew, Inc. v. Poof Apparel Corporation , falls in step with the rule that for any statutory damages, copyright registration must precede infringement.

In a clothing case, the alleged infringement began prior to the copyright registration date of plaintiff's "hang-tag", but continued after the copyright registration date. Section 412 of the Act mandates that in order to recover statutory damages, the copyrighted work must have been registered prior to commencement of the infringement, unless the registration is made within three months after first publication of the work.

The plaintiff did not register until two years after the first publication of its work, and the initial infringement occurred prior to the registration of the infringed work. But,individual acts of infringement occurred after the copyright registration date.

The Ninth Circuit explained that it would be peculiar to use the word "commenced" to describe a single act of infringement, rather than an activity beginning at one time and continuing or reoccurring thereafter. The Ninth Circuit held that the first act of infringement in a series of ongoing infringements of the same kind marks the "commencement" of one continuing infringement under Section 412. This decision is consistent with other circuits (2nd Circuit, 4th Circuit, and 5th Circuit) that have previously addressed this issue.