Plaintiff Patrick Overton submitted jury instructions that requested that the jury render alternative verdicts – one for statutory damages and one for actual damages – for alleged copyright infringement. After considering the parties’ arguments on the issue, the court noted that “there appears to be no definitive answer as to the plaintiff’s right to proceed in the this manner,” but nonetheless granted the plaintiff’s request.
Section 504(c)(1) of the Copyright Act allows a plaintiff to elect statutory damages “at any time before final judgment is rendered.” In addition, in Feltner v. Columbia Pictures Television, Inc., the U.S. Supreme Court also held that the Seventh Amendment provides the right to jury trial on all issues pertinent to an award of statutory damages. The court seemed troubled by allowing a jury to render alternative damage awards from which a plaintiff may then choose. A plaintiff must normally choose its theory of recovery before submission to the jury, and “there is certainly a risk of jury confusion as to how to separate these two damages calculations, and at least a hint of potential prejudice to the defendants, who may be required to argue two or more potentially inconsistent theories of defense to plaintiff’s damage claims at the same time.”
The court noted, however, that requiring a plaintiff to elect before trial among the two forms of damages would frustrate the statute, because case law has held that when a plaintiff elects statutory damages he waives the right to later elect actual damages. The court held that “as a practical matter, the best way to satisfy the dictates of the copyright statute and Feltner is to require the jury to enter alternative verdicts.” The court noted that at least three other courts have followed this approach. (See Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267, 273 (6th Cir. 2009); Kiva Kitchen & Bath Inc. v. Capital Distrib. Inc., 319 Fed. Appx. 316, 320 (5th Cir. 2009); Cotter v. Christus Gardens, Inc., No. 99-5996, 2000 WL 1871698, at *2 (6th Cir. Dec. 12, 2000)). The court attached the amended jury instructions “in an attempt to set out, as clearly as possible, the jury’s role in deciding alternative damages.”