By michael li
An infringer can use 33 illustrations and still argue that statutory damages should be calculated for only two works. U.S. copyright law counts works for this purpose, not simply files, copies or unauthorized uses.
That was Flora's position in Sullivan v. Flora, Inc. The company had infringed an illustrator's rights, but argued that her 33 illustrations belonged to two compilations rather than qualifying for 33 separate statutory-damages awards.
The court did not declare that two registrations meant only two awards. It required a closer examination of the illustrations' independent economic value, a dispute that continued through another trial before the parties settled.
For a business preparing a U.S. copyright registration, the useful question comes much earlier: what will the filing record and the commercial documents actually show about each work?
Flora manufactures herbal supplements and health products. In 2013, it hired Joseph Silver to produce advertising for two products, “7 Sources” and “Flor-Essence”; Silver, in turn, hired illustrator Amy Lee Sullivan, doing business as Design Kit.
Sullivan produced 33 illustrations, which Silver animated into two motion graphics. She licensed the illustrations for those campaigns, but later discovered uses beyond the agreed license, registered two illustration collections and sued.
At the original trial, the jury found willful infringement and rejected the joint-authorship defense. It awarded $3.6 million in statutory damages and $143,500 in actual damages; Sullivan elected the statutory award, rather than collecting both.
Flora challenged the calculation. Its position included an argument that Sullivan could receive only two statutory awards because the individual illustrations lacked economic value apart from the collections.
In 2019, the Seventh Circuit adopted the independent-economic-value test and sent the damages issue back. After the district court reinstated the same award on summary judgment, the case returned to the appeals court.
The March 31, 2023 decision required further factfinding on damages. It did not reopen the established infringement findings or give Flora another opportunity to litigate joint authorship.
The evidence was more complicated than a count of certificates. The court discussed invoices, individual marketing, how the illustrations were produced, client-specific content and background textures; it explained that no single factor controlled the analysis.
The later record matters, too. On August 14, 2024, a new jury returned a $4,865,561 damages verdict, and the second amended judgment identified that sum as statutory copyright damages, separately from unjust-enrichment damages and costs.
The parties subsequently settled: an October 31, 2024 docket entry recorded a stipulation of dismissal with prejudice, and a November 1 entry recorded dismissal of the appeal. The verdict should therefore not be presented as proof of what Sullivan ultimately received under the settlement.
The lesson is not that Flora succeeded in reducing 33 illustrations to two compensable works. It is that even established infringement did not eliminate a substantial dispute over how the works should be counted.
Section 504(c)(1) permits an eligible copyright owner to elect statutory damages instead of actual damages and profits. It provides an award for all infringements in the action concerning “any one work” within the provision's liability framework, and treats all parts of a compilation or derivative work as one work.
That makes three questions worth separating. Was there infringement? How many works count for statutory damages? What award is appropriate for each qualifying work?
Winning the first question does not automatically answer the other two. Nor does proving that an image appeared on several pages automatically create a separate statutory award for every appearance.
The Sullivan decisions apply the Seventh Circuit's approach. Other federal circuits do not all analyze compilations in precisely the same way, so the case should not be turned into a universal rule that separately saleable images always receive separate awards.
Before choosing a filing route, create an inventory that connects each proposed work to its original files and commercial history. The goal is an accurate record, not a spreadsheet designed to manufacture a larger damages demand.
| Record | What to preserve | What it helps clarify |
|---|---|---|
| Work identity | A stable title, asset ID, complete image and source file | Whether the registration materials identify the same work later relied on |
| Creation history | Dated drafts, contributor records and version notes | Whether an item is an individual illustration, a revision or a component |
| Ownership | Relevant employment, commissioning and assignment documents | Who created the work and who can properly claim it |
| Publication history | Release copies, distribution records and supporting dates | Which filing options and timing questions need review |
| License terms | Permitted media, products, territories, duration and reserved uses | What the customer was allowed to do with the illustrations |
| Pricing and marketing | Authentic quotes, invoices, listings and licensing correspondence | Whether and how individual works had commercial value |
| Filing record | The application, deposit files, titles and correspondence | What was actually submitted, rather than what the business intended to submit |
Sullivan shows why an ordinary invoice can become important. A campaign-level price may support one interpretation of the transaction, while reserved rights, separate licensing discussions or other evidence may support another.
Neither a single invoice nor separate filenames settle the issue. Keep genuine records as they arise, and do not retrospectively rewrite a package deal as 33 individual sales.
It is also worth distinguishing finished illustrations from production materials. A background texture, a storyboard and a complete reusable image may serve different commercial purposes even when they sit in the same delivery folder.
The Copyright Office describes group registration as an administrative procedure for registering multiple eligible works through one application. Subject to the particular option and its scope, one certificate can cover separately registered works; the administrative group is not automatically a creative compilation.
That distinction does not guarantee separate damages awards. Registration scope, the character of the works, the applicable court's law and eligibility for statutory remedies still need their own assessment.
For current published two-dimensional artwork, GR2D became available on February 17, 2026. It permits two to twenty eligible works first published within the same calendar year, subject to requirements concerning authorship, claimant identity, subject matter and deposits.
Do not apply that 2026 option retrospectively to Sullivan's 2013 registrations. Nor should a present-day applicant assume that a folder of 33 illustrations can simply be split into two eligible GR2D filings.
An individual application may be appropriate in some circumstances, but paying for separate applications does not purchase a guaranteed damages multiplier. Select the filing route from the actual works and eligibility facts, not from a promised recovery.
Suppose a packaging studio delivers twelve original illustrations and six background textures for one product launch. Several illustrations have documented standalone licensing offers, while the textures were produced only to support the campaign layouts.
The studio should preserve those differences when preparing its registration materials. One delivery folder does not explain the authorship, publication history or commercial role of all eighteen items.
This is a hypothetical filing discussion, not a reported client matter. It does not establish that the studio has eighteen separate works for damages purposes, or that every texture is independently copyrightable.
For the wider registration framework, read our guide to GR2D eligibility and filing preparation. It explains the author, claimant, publication-year and deposit questions that should be resolved before artwork is grouped.
Photography follows different registration routes. If the archive contains photographs rather than illustrations, our U.S. photograph group-registration guide provides the broader starting point; do not transfer GR2D's limits to a photographic application.
Not necessarily. An eligible group registration can cover multiple works, and the Copyright Office distinguishes that administrative grouping from a compilation; the number of available awards still requires the relevant legal and factual analysis.
No. The 2023 appeals decision required further damages factfinding, the 2024 trial produced a new damages verdict, and the parties later settled; the case is not authority for an automatic two-award result.
The Seventh Circuit's analysis does not make one previous sale a universal prerequisite. Marketing, pricing, production and other evidence can matter, but no single factor automatically resolves the independent-value question.
That is not a universal filing rule. Compare the available registration options, eligibility, timing, ownership and the actual relationship between the works; separate applications alone do not guarantee separate awards.
Not automatically. Section 412 restricts statutory damages and attorney-fee awards when infringement commenced before registration, subject to its exceptions, including the specified three-month rule after first publication; an existing dispute needs a work-specific timeline and legal assessment.
IPcrossark lists U.S. copyright registration agency services within its copyright services. For an illustration project, a useful starting point is an organized inventory showing each proposed work, its author, the ownership documents, publication information and the files intended for deposit.
Bring the commercial record alongside that inventory. A proposal described as “one campaign,” a license reserving individual uses and a folder containing several versions should be reconciled before the application is prepared, rather than left for someone to reconstruct during a dispute.
To discuss the registration work, contact IPcrossark with the inventory and the questions still unresolved. Confirm the service scope and fees for the project; an existing infringement claim, damages calculation or litigation strategy requires a separate assessment by qualified U.S. copyright counsel.
U.S. Court of Appeals for the Seventh Circuit: Sullivan v. Flora, Inc., No. 22-2386, March 31, 2023
GovInfo: Sullivan v. Flora, Inc., August 8, 2024 District Court Order
District Court Docket, Public Copy on CourtListener: Settlement and Dismissal, Entries 509–512
U.S. Copyright Office: 17 U.S.C. §504, Copyright Infringement and Remedies
U.S. Copyright Office: 17 U.S.C. §412, Registration and Certain Remedies
U.S. Copyright Office: Compendium Chapter 1100, Registration for Multiple Works
U.S. Copyright Office: Group Registration of Two-Dimensional Artwork
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