May 2018
The recent decision in Energy Intelligence Group, Inc. v. CHS McPherson Refinery, Inc.1 highlights a circuit split regarding how courts determine the statutory damages available for copyright infringement where multiple copyrighted expressions are at issue.

Under the Copyright Act, two variables fix a copyright holder’s recovery where the holder elects statutory damages:  (i) an amount awarded within ranges based on the infringer’s culpability, multiplied by (ii) the number of “work[s]” infringed.2  In Energy Intelligence Group, District Judge Eric Melgren reminds litigants that there are two different approaches by which courts determine the number of “works” at issue: the “independent economic value” standard and the “plain language” standard.  Under the independent economic value standard, courts hold that expressions constitute separate works entitled to separate awards of statutory damages if they have “independent economic value.”  By contrast, under the plain language standard, other courts ask only whether the copyright holder issued the expressions together, potentially resulting in smaller damages awards.  Given this contrast, copyright holders, as well as alleged infringers, should be knowledgeable concerning which test is employed by the courts in their jurisdiction.  They should also be prepared to articulate arguments for expanding or contracting the number of works at issue under either standard.  

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