The opinion of the court was delivered by: Honorable Candy W. Dale Chief United States Magistrate Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court is Defendant's Motion to Dismiss Plaintiff's Claim for Multiple Awards of Statutory Damages. (Dkt. 5.) Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter will be decided on the record before the Court without oral argument. For the reasons set forth below, Defendant's motion will be denied.
Because this matter is before the Court on Defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), all material allegations contained in the complaint are accepted as true and construed in the light most favorable to the plaintiff. NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).
In 1996, professional photographer Gregory J. Yaskot ("Plaintiff") took a photograph of the Teton mountain range entitled "Autumn at Spring Hollow Ranch." Plaintiff registered the photograph with the United States Copyright Office on August 19, 2003. In February of 2008, Plaintiff learned that Intermountain Natural, LLC ("Defendant") was using the photograph as its logo and in the marketing of its beef jerk products. Defendant did not have permission to use the photograph.
On March 9, 2010, Plaintiff sent a cease and desist letter to Defendant. Plaintiff alleges that, before the cease and desist letter was sent, but after the photograph had been registered with the U.S. Copyright Office, Defendant "used the photograph in its logo on hundred of thousands of packages, in its advertising, at trade shows and on its own website and the websites of other businesses." (Compl. at 2, Dkt. 1.) Plaintiff further alleges that, after the cease and desist letter was sent, Defendant intentionally continued to use the photograph on its website, on its packages, and in its advertising, and that Defendant has sold thousands of packages with the photograph on it since March 9, 2010.
Following Defendant's continued unauthorized use of the photograph, Plaintiff filed suit under the Copyright Act of 1976, 17 U.S.C. § 101 et seq. Plaintiff claims that Defendant's unauthorized use of the photograph constitutes copyright infringement under the Act. Plaintiff seeks actual damages in the amount of five hundred thousand dollars and requests that the Court enjoin Defendant from further using the photograph. Alternatively, Plaintiff seeks the maximum amount of statutory damages allowed under § 504 of the Copyright Act.
In his Complaint, Plaintiff states that "[e]ach time the Defendant used the photograph on a package, on a webpage, on a display, or in other advertising [it constituted] a separate infringement of the copyright of the photograph," (Compl., ¶ 7), and "[t]hat due to the extensive and blatant use of the photograph, the Defendant should pay the maximum statutory damages for use of the aforesaid photograph prior to March 9, 2010 for each infringement." (Compl., ¶ 18 (emphasis added)). Defendant argues that the relief sought -- "maximum statutory damages . . . for each infringement" -- constitutes multiple awards of statutory damages and that such an award is not authorized under the Copyright Act where, as here, the plaintiff is only claiming infringement of a single work. (Def.'s Brief in Supp. of Mot. to Dismiss at 2, Dkt. 5-1.) Defendant requests that the Court dismiss Plaintiff's claim for multiple awards of statutory damages under Fed. R. Civ. P. 12(b)(6).
In his opposition, (Dkt. 9), Plaintiff argues that Defendant has taken the italicized language quoted above from the Complaint out of context and that Plaintiff "does not request multiple awards for statutory damages." (Pl.'s Obj. to Def.'s Mot. to Dismiss at 1, Dkt. 9.) In other words, Defendant requests that the Court dismiss Plaintiff's claim for multiple awards of statutory damages, and Plaintiff argues that he is not seeking multiple awards of statutory damages. Following Plaintiff's response, and contributing to an already awkward procedural state of affairs, Defendant did not withdraw its motion to dismiss. Rather, Defendant requests in its Reply in support of its motion to dismiss that "the Court enter an order requiring Plaintiff to file an Amended Complaint within 10 days pleading only a single claim for statutory damages." (Def.'s Reply at 2, Dkt. 11.) Defendant did not file a motion to strike under Fed. R. Civ. P. 12(f).
1. Statutory Damages Under the Copyright Act
The Copyright Act allows plaintiffs to elect between actual and statutory damages. Specifically, 17 U.S.C. § 504(c) provides that "the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work . . . in a sum of not less than $750 or more than $30,000 as the court considers just." (emphasis added).*fn1
Under § 504(c), "the total number of 'awards' of statutory damages . . . that a plaintiff may recover in any given action depends on the number of works that are infringed . . . regardless of the number of infringements of those works." Mason v. Montgomery Data, Inc., 967 F.2d 135, 143-44 (5th Cir. 1992) (emphasis in original). As the Fifth Circuit has pointed out, "[t]he legislative history of section 504 is particularly direct on this point." Id. at 144 n. 11. Discussing § 504(c), Congress stated that "[a] single infringer of a single work is liable for a single amount . . ., no matter how many acts of infringement are involved in the action and regardless of whether the acts were separate, isolated, or occurred in a related series." H.R.Rep. No. 1476 at 162, reprinted in 1976 U.S.C.C.A.N. at 5659. The United States Court of Appeals for the Ninth Circuit is in accord. See Columbia Pictures TV v. Krypton Broadcasting of Birmingham, Inc., 106 F.3d 284 (9th Cir. 1997) ("when statutory damages are assessed against one defendant . . . each work infringed may form the basis of only one award, regardless of the number of separate infringements of that work."), rev'd on other grounds, Feltner v. Columbia Pictures TV, 523 U.S. 340 (1998).
In this case, Defendant argues, and Plaintiff concedes, that the Complaint alleges copyright infringement of only one work. Thus, if Plaintiff ultimately demonstrates that he is entitled to relief and elects to recover statutory rather than actual damages, Plaintiff will be able to recover only a single award of statutory damages under ...