the 1976 General Revision of Copyrig t Law, Pub. L. No. 94-553, For exam 90 Stat. 2541, 17 U.S.c. SS 101 et seq. ("1976 Act"). The mere absence of competition or injurious We conclude that it is not incumbent on the 131 F. Supp. at 184. This explicit rejection of the harm argument is pervasive. E.g., Marcus v. Rowley, 695 F.2d 1171 (9th Cir. 1983) ("The mere absence of pecuniary damage does not require a finding of fair use"). Indeed, since copyright owners have the exclusive right to determine how and in what manner to exploit their property, recent cases have emphasized that unauthorized interference with that right constitutes infringement even when the infringing conduct actually increases sales of the copyrighted work. DC Comics, Inc. v. Reel Fantasy, Inc., 696 F.2d 24, 28 (2d Cir. 1982); Iowa State University v. American Broadcasting Companies, Inc., 621 F.2d 57, 62 (2d Cir. 1980). In DC Comics, the court explained: Since one of the benefits of ownership of 696 F.2d at 28. In sum, the cases uniformly recognize that to require a copyright plaintiff to prove past or future harm to avoid a fair use defense would abrogate the copyright owner's right to prevent unauthorized uses of his property. As explained below, such a result would virtually emasculate the exclusive nature of the rights granted by the Copyright Act. See 17 U.S.C. $ 106. The question whether a copyright owner must demonstrate harm to secure relief against copyright infringement has received an identical negative response in the context of granting injunctions. More specifically, defendants have frequently asserted that preliminary injunctive relief is inappropriate unless the copyright plaintiff proves that he will suffer irreparable injury if a preliminary injunction is not issued. This argument has been uniformly rejected in the copyright context, despite the fact that a showing of irreparable injury is required in order to secure a preliminary injunction against invasion of most other property rights. As explained in numerous cases, once a copyright plaintiff proves a prima facie case of infringement, irreparable harm to the copyright is presumed; because of that presumption, a copyright owner need not make a showing of irreparable injury to secure a preliminary injunction. Rather, the burden is on the defendant to prove that the plaintiff will not suffer such injury.2/ Proof of harm is likewise unnecessary to obtain permanent injunctive relief. Once infringement is proven, courts rou 1/ Wainwright Securities, Inc. v. Wall Street Transcript Corp., 558 F.2d 91, 94 (2d Cir. 1977), cert. denied, 434 U.S. 1014 (1978); Rice v. American Program Bureau, 446 F.2d 685, 688 (2d Cir. 1971); American Metropolitan Enterprises of New York v. Warner Bros. Records, Inc., 389 F.2d 903, 905 (2nd Cir. 1968); Uneeda Doll Co. v. Goldfarb Novelty Co., 373 F.2d 851, 852 n.l (2d Cir. 1967). 2/ Metro-Goldwyn-Mayer, Inc. v. Showcase Atlanta Cooperative Productions, Inc., 479 F. Supp. 351, 362 (N.D. Ga. 1979); Encyclopedia Britannica Educational Corp. v. Crooks, 447 F. Supp. 243, 247, 251 (W.D. N.Y. 1978). Often tinely grant permanent injunctions, regardless of whether the plaintiff has proven past or future harm.3/ The reason for this approach, firmly recognized in the case law, is apparent. a copyright owner will be unable to prove past or future damage.4/ If this inability to establish harm meant that injunctive relief were unavailable, a copyright owner's rights would be subject to a free mandatory judicial license whenever the owner could not prove actual past or future damages with certainty. Such a result would virtually negate the exclusive nature of the rights granted by the Copyright Act. See 17 U.S.c. § 106. Thus, if copyright law is to retain full vitality, a copyright owner must be granted relief after liability has been established, even in the absence of any proof of past or future harm. Congress also recognized the difficulty of establishing past or future harm in the copyright infringement context in both the 1909 and 1976 Copyright Acts. Both Acts contain provisions which permit copyright owners to refrain from introducing proof of actual damages and the defendant's profits, and instead to 3/ Walt Disney Productions v. Air Pirates, 581 F.2d 251, 754 (9th Cir. 1978); Chappell & Co. v. Middletown Farmers Market & Auction & Co., 334 F.2d 303 (3rd Cir. 1964); Big Sky Music v. Todd, 388 F. Supp. 498, 501 (S.D. Ga. 1974); Fisher-Price Toys v. My Toy Co., Inc., 385 F. Supp. 218 (S.D. N.Y. 1974); Shapiro, Berstein & Co., Inc. v. "Log Cabin Club Ass'n", 365 F. Supp. 325, 328 (N.D. W.Va. 1973); Peter Pan Fabrics, Inc. v. Dixon Textile Corp., 188 F. Supp. 235, 238 (S.D. N.Y. 1960); Advisers, Inc. v. Wiesen-Hart, Inc., 161 F. Supp. 831, 834 (S.D. Ohio 1958); Gordon v. Weir, 111 F. Supp. 117, 124 (E.D. Mich. 1953), aff'd, 216 F.2d 508 (6th Cir. 1954). 4/ The Lottie Joplin Thomas Trust v. Crown Publishers, Inc., 592 F.2d 651, 657 (2d Cir. 1978) 1 Mills Music, Inc. V. State of Arizona, 187 U.S.P.Q. 22, 39-40 (D. Ariz. 1976), aff'd on other grds., 591 F.2d 1278 (9th Cir. 1979); Advisers, Inc. V. WiesenHart, Inc., supra, 161 F. Supp. at 834. recover statutory damages in an amount specified by the statute.5/ See 17 U.S.c. $ 101 (b) (superseded); 17 U.S.C. S 504 (c); H.R. Rep. 94-1476, 94th Cong., 2d Sess. 161 (1976) ("Recovery of actual damages and profits under section 504 (b) or of statutory damages under section 504 (c) is alternative and for the copyright owner to elect; as under the present law, the plaintiff in an infringement suit is not obliged to submit proof of damages and profits and may choose to rely on the provision for minimum statutory damages"). Thus, in its most recent expression on this issue Congress has again made clear that proof of actual damages is unnecessary to entitle a copyright owner to monetary relief for copyright infringement. See 3 Nimmer on Copyrights 13.05 The courts and Congress traditionally have rejected harm as a threshold requirement prior to a finding of copyright infringement because such a requirement would undermine the basic policy of promoting "the progress of science and useful arts" expressed in the Copyright Clause of the Constitution. The copy right laws enacted pursuant to this constitutional precept reward the copyright owner for the creation of his work and provide an incentive for future creativity in order to foster the creation and dissemination of intellectual works for the public benefit. The public would be poorly served if Congress overturned longstanding precedent by requiring a copyright owner to prove harm to establish liability for infringement in off-the-air taping 5/ Under the 1909 Act, the minimum amount so specified was $250 per infringement; the maximum was $5,000 per infringement. 17 U.S.C. s 101 (b) (superseded). The 1976 Act specifies a minimum of $250 and a maximum of $10,000 per infringement. 17 U.S.C. S 504 (c). Under both Acts, the trial court has discretion to set the statutory damages at any amount between the statutory minimum and maximum. See id. because, among other reasons, only creative works with current commercial value that are actually exploited commercially would. be entitled to copyright protection. In subscribing to this principle, Congress would risk losing future intellectual creations at the expense of protecting only those which appeal to the present tastes of mass audiences. First, as previously discussed, it is necessary to consider copyright as a basic property right. The policy behind granting property rights is that an individual should have the right to remain secure in his possession. Therefore, he is vested with the power to possess his property exclusively and to prevent anyone else from interfering with it without his permission. economic - This concept of protecting property against unauthorized uses pervades the copyright law. "The fact that copyrights are incorporeal does not deprive them of their nature as a species of property." Tribe, Memorandum of Constitutional Law On Copyright Compensation (Dec. 5, 1983). "And copyrights are every bit as real as freighted with operative consequences, both legal and as their corporeal and visible counterparts." Id. As a separate body of law, copyright affords an even higher level of protection to the copyright owner to exclude others from the use of his work precisely because copyright is intangible property. Without copyright protection, no means would exist to restrain men from infringing on an individual's rights in his creative property. Therefore, the right to exclude others from using copyrighted property is crucial because it is the primary source of a copyright's economic value. This economic value would diminish rapidly if a copyright owner were forced to establish proof of economic harm to his copyright before he could be granted a remedy for copyright infringement. Unless Congress continues to protect the sanctity of the copyright law by rejecting harm as an element of a copyright infringement action, the copyright law will erode until the incentive to create will no longer exist. |