This past June, I presented my forthcoming paper, Damages for Noneconomic Harm in Intellectual Property Law, 72 Hastings L.J. __, at an OxFirst free webinar. The video of the webinar is now available here. The webinar description follows below:
This talk offers a comprehensive analysis of awards of “non-economic” damages for reputational and emotional harm in intellectual property (IP) law. It 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. Courts should recognize reputational harm as a potentially cognizable injury throughout all of the branches of IP law, but damages for emotional harm should be limited to right of publicity and moral rights matters.
I'm working on an edit of the paper this week and next week, so I'm still open to receiving any comments, criticism, or suggestions.