Damages for Noneconomic Harm in Intellectual Property Law

63 Pages Posted: 25 Apr 2020 Last revised: 14 Oct 2020

See all articles by Thomas F. Cotter

Thomas F. Cotter

University of Minnesota Law School

Date Written: March 31, 2020

Abstract

This article provides a comprehensive analysis of awards of “non-economic” damages for reputational and emotional harm in intellectual property (IP) law, including trademarks, copyright and moral rights, the right of publicity, and patent law. The article discusses, among other matters, the Second Circuit’s recent decision in Castillo v. G&M Realty LP, affirming a $6.75 million award of statutory damages for the infringement of artists’ moral rights in graffiti art; the European Union’s Intellectual Property Rights Enforcement Directive and its 2016 Liffers decision, which appear to require member states to award, where warranted, non-economic (“moral prejudice”) damages across the full range of IP cases; and some recent arguments in favor of awarding damages for emotional harm in, even, patent infringement actions. Prompted by these and other developments, I argue that courts should recognize reputational harm as a potentially cognizable injury throughout all of the branches of IP law, but that damages for emotional harm should be limited to right of publicity and moral rights matters. In addition, I discuss the various options for providing monetary relief in response to non-economic harm, including awards of general damages, statutory damages, disgorgement of the infringer’s profits, and enhanced or punitive damages; and I conclude with a set of recommendations for crafting awards in a manner that would both vindicate the relevant, cognizable interests of plaintiffs while reducing the risks of arbitrary, uncertain, and potentially over-deterrent relief.

Keywords: Copyright, Moral Rights, Trademarks, Right of Publicity, Patents, Damages, Non-economic Damages, Emotional Harm, Reputation

Suggested Citation

Cotter, Thomas F., Damages for Noneconomic Harm in Intellectual Property Law (March 31, 2020). Hastings Law Journal, 2021 Forthcoming, Available at SSRN: https://ssrn.com/abstract=3565537 or http://dx.doi.org/10.2139/ssrn.3565537

Thomas F. Cotter (Contact Author)

University of Minnesota Law School ( email )

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Minneapolis, MN 55455
United States
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