Shade v. Gorman, 08-3471 SI, 2009 WL 196400 (N.D.Cal. Jan. 28, 2009).

Shade took photographs and video in Central Asia immediately following September 11, 2001.  In 2003, the parties entered into a preliminary agreement for Gorman to produce a documentary using Shade’s video footage.  Gorman proposed ideas, but the parties were unable to come to an agreement. Shade alleged that in January of 2008 he learned that Gorman had used his photos and video footage without his permission in the creation of a documentary titled “American Hero,” which was shown at the San Francisco Indie Film Festival in February of 2008.

Gorman moved to dismiss Shade’s claims for statutory damages and attorneys’ fees, arguing that they aren’t available for infringement that commences before registration. See 17 U.S.C. § 412. Shade argued that while he couldn’t recover statutory damages and attorneys’ fees for any pre-registration infringement, the relief was available to him for post-registration infringement.

Judge Illston of the Northern District of California held that “Section 412(2) mandates that, in order to recover statutory damages [and attorneys' fees], the copyrighted work must have been registered prior to commencement of the infringement, unless the registration is made within three months after first publication of the work.” Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 699 (9th Cir.2008).  The Court granted Gorman’s motion because the alleged infringement began on February 17, 2008, which was more than three months before Shade obtained registration of the copyrights.

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