Cotter on Damages for Noneconomic Harm

Long-time readers may recall that I have occasionally blogged on the subject of damages for "moral prejudice" in patent (see, e.g., here, here, and here) and other bodies of IP law (see, e.g., here and here).  My coauthors and I also very briefly touched on this subject in chapter 2 of Patent Remedies for Complex Products (pp. 70-71).  I now have a new paper up on ssrn, titled Damages for Noneconomic Harm in Intellectual Property Law, 62 Hastings L.J. __ (forthcoming 2021).  Here is a link, and here is the abstract:

This article provides a comprehensive analysis of awards of “noneconomic” 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, noneconomic (“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 noneconomic 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 overdeterrent relief. 

I probably will be making some revisions over the coming months, and would appreciate any feedback that interested readers may have.