Online Video Publisher Learns Why You Should Register Your Copyrights Early–LTVN v. Odeh
By Eric Goldman
Kramer is a litigator. He formed an organization that publishes educational videos about legal topics and provides both paid and free syndication options for third parties to incorporate the videos into their websites. I didn’t fully understand the extra value from the paid syndication option, which may be part of the problem. The defendant Odeh inquired about a paid syndication option for his Claims Consulting website, got a price quote, apparently didn’t like it, and then signed up for the free syndication option. The complaint then alleges:
Mr. Odeh posted 12 LTVN videos related to filing insurance claims on his website on March 12, 2009. Claims Consulting presented the videos as its own by removing references to LTVN and CLIENTELEVISION.com, deleting LTVN’s animations that appeared at the beginning and end of each video, and removing LTVN’s seven-second promotional video. Claims Consulting also referred to the videos as “our information videos” and displayed them in its own flash video player. Furthermore, on the bottom of the page displaying the videos, Claims Consulting posted the following notice: “Copyright© 2009 Claims Consulting, LLC. All Rights Reserved.” [citations removed]
If the allegations are true, this looks like a straightforward copyright infringement claim. This also looks like a good candidate for a 1202 violation based on the alleged removal of the copyright management information and addition of new false information, although the complaint doesn’t allege 1202 (a cause of action seemingly overlooked by the plaintiff).
Despite the solid-looking copyright claim, the publisher made the tactical error of not making a timely registration of its copyrights. As a result, the publisher can’t get statutory damages or attorneys’ fees. The court also reminds the plaintiff that punitive damages aren’t available for copyright claims. Thus, if the plaintiff wins the copyright claim, its only damages will be “actual damages for any fair market licensing fee they would have charged the defendants for use of their videos.” In other words, the defendant’s alleged ripoff won’t cost it any more than if it had taken the license deal in the first place.
Most of the plaintiff’s other claims are preempted by federal copyright law. The Lanham Act false designation of origin was preempted per Dastar. The breach of contract claim was preempted as coextensive with the copyright claim (an area of doctrinal controversy). Other claims (state copyright, reverse passing off, unjust enrichment, and conversion) are all typically preempted when predicated on a copyright violation. The publicity rights claim isn’t preempted, but the plaintiff attorney’s image only appears in the video’s editorial content and therefore there was no implied endorsement.
So, after the motion to dismiss, the plaintiff’s complaint has been cut down to a standard copyright infringement claim with only actual damages–i.e., standard licensing fees–available at the end. This case is now primed for settlement, especially because the plaintiff has to come out of pocket for all further litigation proceedings (eating into the ROI of further investments). Clearly, the tenor of any settlement discussions would be very different if the plaintiff had made timely copyright registrations–with 12 videos allegedly infringed, the case would have a maximum value of over $2M including attorneys’ fees. A practice pointer: if you’re going into the content licensing business and hoping to get people to pay you, timely copyright registrations are a must to support any enforcement actions.