When Initial Infringement Occurs Before Copyright Registration, Statutory Damages Not Warranted for Post-Registration Infringements

摘要

Poof Apparel Corporation appealed to the Ninth Circuit the district court's award to Derek Andrew, Inc., of $15,000 in statutory damages under the Copyright Act, along with $296,090.50 in attorneys' fees. Poof and Andrew were corporations engaged in the apparel business. Andrew's Twisted Heart line is identified by its label and, in particular, its "hang-tag" featuring its "Heart Design" and "Twisted Heart" trademarks. The Twisted Heart Line is sold in high-end retail stores like Nordstrom. Developed and first used in 2003, the Twisted Heart hang-tag hangs from the garment by a small, satin ribbon. Andrew registered the tag, including its configuration and the artwork in the label, with the US Copyright Office on June 15, 2005. Poof sells women's clothing to retail stores and other customers throughout the United States. Most of its clothes are manufactured abroad and are shipped throughout the United States to lower-end retail stores such as TJ. Maxx,The Wet Seal, and Marshall's. Affixed to certain clothing sold by Poof are hang-tags nearly identical to Andrew's "Twisted Heart" hang-tags, the only difference being the word "Poof!" in place of the words "Twisted Heart."