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June 26, 1995

SUSAN FREMGEN, et al., Defendant.

The opinion of the court was delivered by: ROBERT W. GETTLEMAN


 Plaintiff Respect Incorporated has brought an action for copyright infringement pursuant to 17 U.S.C. § 101, et seq. (the "Act") against a number of defendants, including Law Bulletin Publishing Company, American Forms, and Sigma Graphics (the "Printer Defendants") *fn1" alleging that they unlawfully reproduced plaintiff's work in violation of Section 106(1) of the Act. The parties have filed cross-motions for partial summary judgment on the issue of what damages plaintiff may recover should it prevail on liability. The defendants assert that they can be liable only for the actual damages caused by their own infringement, i.e., the amount of their profits, or for statutory damages under Section 504(c) of the Act. Plaintiff asserts that it can recover from the Printer Defendants all of its actual damages incurred as a result of the unlawful distribution of the reproductions by a third party (who ordered the reproductions from the Printer Defendants) whom plaintiff had sued previously, and with whom plaintiff has entered into a settlement agreement. For the reasons set forth below, the court grants the Printer Defendants' motion for partial summary judgment and concludes that they are liable only for the damages actually caused by their own infringement or for statutory damages.


 In 1985 Colleen Mast wrote and received a copyright on a set of educational booklets concerning sexual abstinence by teenagers (the "Textbooks"). Mast later assigned the copyright to plaintiff. Plaintiff and the Committee on the Status of Women (the "Committee") entered into negotiations concerning federal funding for a project known as Sex Respect, pursuant to which Mast would produce the Textbooks for dissemination to schools throughout the United States. The Committee did in fact receive a grant from the United States Department of Health & Human Services ("HHS"), but by then the Committee and Mast had had a falling out and had severed their relationship. The Committee, apparently believing that it had authority from HHS, placed orders for the reproduction of the Textbooks which bore the express copyright of Mast, and indicated that it was printed by Project Respect, a project of the Committee, and reprinted with the approval of the Office of Adolescent Pregnancy Programs, U.S. Department of Health & Human Services. The Committee's belief was based on a letter it had received from HHS granting approval to reproduce the Textbooks. After receiving the reproductions from the Printer Defendants, the Committee proceeded to distribute them to schools throughout the country.

 Mast and plaintiff sued the Committee for copyright infringement. Judge Shadur, to whom that case was assigned, determined that HHS did not have authority to grant approval to the Committee to reproduce the Textbooks, and thus entered summary judgment in favor of Mast and plaintiff on the issue of copyright liability. The Committee appealed, but the parties settled their dispute, and the appeal was withdrawn. While that suit was pending, however, plaintiff filed the instant action alleging that the Printer Defendants violated plaintiff's copyright by reproducing the Textbooks pursuant to the Committee's orders. In this suit, plaintiff alleges that the Printer Defendants are liable for all actual damages plaintiff suffers as a result of their own and the Committee's infringement.


 Section 504 of the Act sets forth remedies for infringement. In general, the section provides that an infringer is liable for either the copyright owner's actual damages and any additional profits of the infringer, or for statutory damages (which are not at issue here). In particular, Section 504(b) provides:

"(b) Actual Damages--A copyright owner is entitled to recover the actual damage suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damage.

 17 U.S.C. § 504(b) (emphasis added). The disagreement in this case revolves around the phrase "as a result of the infringement."

 Plaintiff asserts that it is entitled to recover from the Printer Defendants all of its actual damage incurred as a result of the Committee's infringement, i.e., the Committee's decision both to reproduce and distribute the Textbooks. Thus, plaintiff seeks to recover from the Printer Defendants the value of its lost sales resulting from the Committee's distribution (less, of course, whatever plaintiff has received from its settlement with the Committee). To achieve this result, plaintiff first defines the alleged "infringement" as the Committee's distribution of the Textbooks, and then asserts that the Printer Defendants are jointly and severally liable with the Committee as joint tort-feasors. To support this argument, plaintiff relies principally on Chappell & Co., Inc. v. Frankel, 285 F. Supp. 798 (S.D. N.Y. 1968) which, according to plaintiff, holds that co-infringers are jointly and severally liable.

 Plaintiff is correct that copyright infringement is considered a tort, and that co-infringers are considered joint tort-feasors, with joint and several liability. Id. In the instant case, however, plaintiff has put the cart before the horse by simply assuming that the Printer Defendants are coinfringers with the Committee. Chappell defines a coinfringer as one who participates in the infringement. Id. at 800; see also, Massapequa Publishing Co., Inc., v. Observer, Inc., 191 F. Supp. 261 (E.D. N.Y. 1961) ("it is settled law that all who participate in an infringement are jointly and severally liable"). In the instant case, however, the Printer Defendants did not participate in the Committee's infringement. They had no connection with and had no control over the Committee's distribution of the Textbooks, and it is this infringement for which plaintiff attempts to hold them liable. This court agrees with the court in Maloney v. Stone, 171 F. Supp. 29, 32 (D.C. Mass. 1959), that the "nexus between the owner of the copyright and the printer of infringing copies arises when the infringements are produced. The moment [the printer] printed he became liable to plaintiff. It was then that he invaded plaintiff's rights." Thus, the Printer Defendant's conduct ceased when they delivered the copies to the Committee. This court agrees with the statement in Maloney that to "hold [the Printer Defendants] liable for what [their] independent customers do would be a socially preposterous and commercially disastrous doctrine." Id.2

 This conclusion is buttressed by both the wording of the Act and plaintiff's complaint. Section 106 of the Act defines a copyright owner's exclusive rights:

(1) to reproduce the copyright work in copies or ...

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