## Facts

- On Davis designed and marketed decorative, nonfunctional metallic eye jewelry worn like eyeglasses.
- Gap used a photograph of a model wearing Davis’s copyrighted eyewear in a nationwide advertisement promoting Gap stores.
- Gap used the image without Davis’s permission.
- Davis sued for copyright infringement seeking declaratory relief, actual damages (including an asserted license fee), a share of Gap’s profits, punitive damages, and attorney’s fees.
- The district court granted summary judgment for Gap, concluding Davis could not recover actual damages or profits, could not obtain statutory damages or attorney’s fees due to untimely registration, and could not recover punitive damages; it effectively dismissed declaratory relief for lack of compensable injury.

## Issues

1. Whether a copyright infringement claim (including declaratory relief as to infringement) can be dismissed solely because the plaintiff has not proven recoverable monetary damages.
2. Whether actual damages under 17 U.S.C. § 504(b) may be measured by the fair market value of a reasonable license fee for the infringing use, and whether Davis’s proof was too speculative.
3. Whether Davis could recover any portion of Gap’s profits under § 504(b) without showing a causal nexus between the infringement and Gap’s revenues.
4. Whether punitive damages are available under the Copyright Act.
5. Whether Gap’s use was protected as fair use or was de minimis.

## Decision

- The Second Circuit affirmed in part and vacated in part, remanding for further proceedings.
- The court vacated summary judgment to the extent it dismissed liability and declaratory relief based on lack of proven damages; infringement does not require proof of actual damages or profits.
- The court vacated the dismissal of Davis’s actual-damages claim, holding § 504(b) can allow recovery of the fair market value of a reasonable license fee and Davis’s evidence created a triable issue.
- The court affirmed denial of infringer’s profits because Davis failed to show the required causal connection between the ad’s use of the eyewear and Gap’s profits.
- The court affirmed that punitive damages are not recoverable under the Copyright Act.
- The court affirmed denial of statutory damages and attorney’s fees due to untimely copyright registration under 17 U.S.C. § 412.
- The court rejected Gap’s fair use and de minimis defenses, characterizing the use as commercial, non-transformative, and not insubstantial.

## Legal Principles

- Copyright infringement liability may be adjudicated even if the plaintiff cannot prove recoverable monetary damages; unauthorized copying completes the violation.
- Under 17 U.S.C. § 504(b), “actual damages” may include the fair market value of a reasonable license fee for the defendant’s infringing use, measured objectively by market evidence.
- Recovery of an infringer’s profits under § 504(b) requires a non-speculative causal nexus showing profits are attributable to the infringement.
- The Copyright Act’s remedial scheme does not permit punitive damages.
- Untimely registration bars statutory damages and attorney’s fees under 17 U.S.C. § 412.
- Commercial advertising use that presents a copyrighted work as designed, without transformation and with market-substitution harm, is unlikely to qualify as fair use; prominent use is not de minimis.

## Conclusion

The Second Circuit held that a copyright owner may obtain a determination of infringement without proving monetary loss and may seek actual damages based on a reasonable license fee, but must show attribution to recover profits; it also confirmed punitive damages are unavailable and that untimely registration bars statutory damages and attorney’s fees, remanding for further proceedings on liability and actual damages.


On Davis v. Gap, Inc., 246 F.3d 152 (2d Cir. 2001)