In Re Therese Pearman, 432 B.R. 495 (D. New Jersey June 23, 2010) struggled with precisely this issue. Ms. Pearman wrote a poem grieving her grandparents' death. It was entered in a national competition and won. Then her poem was published in "Chicken Soup for the Christian Soul". She complained and was paid a $500 licensing fee. Years later she found out that someone else was using her poem. She sued for copyright infringement.
But it turns out that someone else wrote the poem in the 1960s. The accused infringer turned around and sued her demanding sanctions. She declared bankruptcy. In analyzing whether the claims against her were dischargeable in bankruptcy the court analyzed first whether or not her actions were willful. The court concluded that they were.
But the court then went on to the second portion of its analysis in determining whether the alleged debt qualified as an exception to discharge in bankruptcy. To qualify for the exception the injury must also be "malicious". The court found that the injury was not malicious and thus did not qualify as an exception to discharge in bankruptcy under Section 523(a) (6) of the Bankruptcy Code.
So the answer is "sometimes" and a higher "malice" standard must be satisfied. See In re Barboza, 545 F.3d 702 (9th Cir. 2008).
Purchase Copyright Litigation Handbook from West here
Sunday, October 03, 2010
Is Copyright Infringement Dischargeable in Bankruptcy?
Labels: 11 usc 523(a), 17 USC 505, attorneys fees, copyright infringement, copyright law, copyrights and bankruptcy, discharge in bankruptcy
Partner in Manhattan law firm Dunnington Bartholow & Miller LLP in New York City litigating in federal and state courts and arbitrations. Experienced trial and appellate practitioner. Author: Copyright Litigation Handbook (Thomson Reuters 2015-2016). The New York Law Journal called it "an indispensable guide". Serve on the Board of Directors of the Federal Bar Association, served as Chair of the Circuit Vice Presidents, Vice President for the Second Circuit and General Counsel. Member Board of Governors, National Arts Club. President, Network of Bar Leaders (2013-2014). Attorney advertising disclaimer - prior results do not guarantee success. The statements and opinions voiced here are my own and not of my law firm.