Page:Harris v. Emus Records.pdf/7

1335 that they in any way constituted an assignment of the copyright interest. As indicated above in relationship to the song “Gliding Bird”, copyright licenses cannot be transferred without explicit authorization in the agreement. The release of the new album, without new mechanical licenses, constituted copyright infringement for which defendants are liable.

2. Damages

The District Court awarded damages of $60,000 to plaintiff for copyright infringement. The infringing actions in these cases occurred between 1979 and 1981 and are controlled by the new Copyright Act of 1976. 17 U.S.C. § 301(a).

Under the 1976 Act, the plaintiff, [sic] may, prior to final judgment, elect to recover either actual or statutory damages. 17 U.S.C. § 504(c)(1). Statutory damages may be elected whether or not there is adequate evidence of the actual damages suffered by plaintiff or of the profits reaped by defendant. 3 M. Nimmer, supra, § 14.04[A]. Where statutory damages are elected, the trial court may, in its discretion, award between $250 and $10,000 for each act of infringement. 17 U.S.C. § 504(c)(1). If the court finds the infringement to have been wilful, the maximum award is increased to $50,000. 17 U.S.C. § 504(c)(2).

The court has wide discretion in determining the amount of statutory damages to be awarded, constrained only by the specified maxima and minima. L.A. Westermann Co. v. Dispatch Printing Co., 249 U.S. 100, 39 S.Ct. 194, 63 L.Ed. 499 (1919). The award will be overturned only for abuse of discretion. See Russell v. Price, 612 F.2d 1123, 1131–32 (9th Cir.1979), ''cert. denied'' 446 U.S. 952, 100 S.Ct. 2919, 64 L.Ed.2d 809 (1980). The district court awarded for each of the six infringed songs the maximum damages permissible, in the absence of a specific finding of wilfullness. The trial court is in a better position than are we to determine appropriate damages. We affirm that decision.

Similarly, we find no abuse of discretion in the award of $34,152.97 in attorneys’ fees. The 1976 Act permits the award of fees to the prevailing party. The amount in this case represented approximately half of the amount plaintiff’s attorneys claim to have earned in this rather extensive litigation.

3. Subsidiary Issues

Defendants urge that the song “Gliding Bird” has entered the public domain because of inaccuracies in the copyright registration. The song was originally registered listing Emmylou Harris as the author. The copyright was later transferred to Nanshel at the same time that the actual author of the song, Tommy Slocum, executed a transfer agreement with Nanshel. The copyright was later assigned to Harris in preparation for the present litigation.

Absent intent to defraud and prejudice, inaccuracies in copyright registrations do not bar actions for infringement. Testa v. Janssen, 492 F.Supp. 198 (W.D.Pa.1980); Urantia Foundation v. Burton, 210 U.S.P.Q. 217, 220 (W.D.Mich.1980); Urantia Foundation v. King, 194 U.S.P.Q. 171, 174–175 (C.D.Cal.1977). While the 1909 Copyright Act makes no provision for correcting mistakes in copyright registrations, plaintiffs did in fact effectuate the necessary correction through transfers of interest. Furthermore, defendants have made no showing that they have been prejudiced in any way by the incorrect original registration.

Defendants further contend that plaintiffs are barred from bringing an infrmgement action by their failure to file a notice of use as required under § 1(e) of the 1909 Act. Such notice was intended to