When you or your company receive a copyright infringement notice, it is important to understand the potential damages you or your company may be exposed to. On the other hand, if you discover that your copyrighted work has been infringed upon, there are certain damages you can seek arising out of the infringement.
The measure of copyright infringement damages is established by federal law under the Copyright Act of 1976. Money damages in a copyright infringement action can include: (1) actual damages, (2) profits of the infringer, or (3) statutory damages.
Actual Damages
Actual damages are the losses suffered by the copyright owner as a result of the infringement. This includes lost sales, lost profits, lost licensing revenue, or any other demonstrable monetary loss resulting from the infringement.
While the concept is easy to understand, measuring actual damages can prove difficult. Actual damages must be based on measurable numbers; an estimate of loss is simply not enough. For example, a copyright owner could try to establish actual damages by demonstrating that sales of the copyrighted work declined immediately upon infringement by a demonstrable amount. The owner would also have to show that the infringement caused the decline in sales. Because such calculations are often imperfect, and causation is not always clear, expert witness testimony may be necessary to explain the measure of damages and establish the damages were caused by the infringement.
Profits of the Infringer
In addition to actual damages, a copyright owner can seek the infringer’s profits made from infringing on the copyrighted work. The concept is clear: the infringer should not be allowed to keep the benefit of their wrongful actions.
Profits of the infringer are awarded only in the amount they exceed the actual damages resulting from the infringement. This measure of damages may also require expert testimony.
Statutory Damages
As an alternative to actual damages and profits of the infringer, the Copyright Act allows statutory damages. As its name implies, statutory damage amounts are set forth in the Copyright Act and may be awarded by a judge or jury. Given the difficulties that can arise in proving actual damages and infringer’s profits, copyright owners often look to statutory damages to recover their losses.
However, statutory damages are not available for:
(1) any infringement of an unpublished work commenced before the effective date of its registration; or
(2) any infringement of copyright commenced after first publication of the work and before the effective date of registration, unless such registration is made within three months after the first publication of the work. Registration of a work is therefore vital not only to bringing a copyright infringement lawsuit but also to ensuring that statutory damages are available as a remedy.
Statutory damages are specified in the Copyright Act as follows:
- For each copyrighted work infringed upon, $750 to $30,000 per work;
- Increased statutory damages of up to $150,000 per copyrighted work infringed upon if the infringement is found to be willful;
- Where the infringer “was not aware and had no reason to believe that his or her acts constituted an infringement of copyright”, the court may reduce statutory damages to as little as $200.
The amount awarded is on a per copyrighted work basis. So, an infringing book would be entitled to one award, not an award per copy sold. The amount is determined by a judge or jury. Given the range of potential statutory damages, whether an infringement is willful is often one of the main battlegrounds in a copyright litigation.
Conclusion
Understanding copyright infringement damages is crucial both when assessing potential exposure when an infringement notice is sent and when assessing potential recovery you may be entitled to when your work is infringed upon. If you have questions about a copyright notice, please let me know if Ican help.
BFV Perspectives, Corporate Matters, | Nov 06, 2019
Daniel H. Park
Work hard at work worth doing. This is what drives Daniel Park in every aspect of his life. At Berman Fink Van Horn, Daniel demonstrates this in everything he does.
FAQs
A copyright owner who prevails in its infringement case and elects to receive statutory damages may be awarded damages in an amount between $750 to $30,000 per work infringed.
What are the potential damages every time an infringing copy is made of a copyrighted work? ›
Anyone found to have infringed a copyrighted work may be liable for statutory damages up to $30,000 for each work infringed and, if willful infringement is proven by the copyright owner, that amount may be increased up to $150,000 for each work infringed.
What are the effects of copyright infringement? ›
Infringement results in loss of revenue, devaluation of intellectual property, damage to brand reputation, and considerable legal costs for content owners.
What are actual damages awarded in a copyright infringement action quizlet? ›
-actual damages refers to the amount of money the copyright owner would have made if the infringing use had been authorized by the copyright owner. -A defendant continues the infringing conduct after a copyright owner's objection and requests that the defendant obtains a license.
What are 4 examples of copyright infringement? ›
Forms of copyright infringement
Downloading music files illegally. Uploading copyrighted material. Downloading licensed software from unauthorized sites. Recording movies in a theater.
What are 2 penalties for copyright infringement? ›
Anyone found liable for civil copyright infringement can be ordered to pay damages, with fines ranging from $750 to $30,000 per work infringed. For “willful” infringement, a court may award up to $150,000 per work infringed.
What is the most common defense against copyright infringement? ›
"Fair Use" is the most widely known and popular affirmative defense against copyright infringement claims. Found in § 107 of the Copyright Act, the fair use defense essentially states that otherwise infringing conduct may be lawful if it is done for certain acceptable purposes.
What is the most common copyright infringement? ›
Image and text are the two most common types of copyright infringement plagiarism. Whether music lyrics, academic writing, or stock photos, usually using them without informing the owner counts as copyright infringement.
What two things must a person suing for copyright infringement prove? ›
In an action for copyright infringement, the plaintiff must prove 1) ownership or of a valid copyright; and 2) that the defendant copied constituent constituent elements of the original work without permission.
What are the results of copyright infringement? ›
Willful copyright infringement can also result in criminal penalties, including imprisonment of up to five years and fines of up to $250,000 per offense.
Types of Copyright Infringement
Reproduces your work as their own. Publicly displays your work without permission. Distributes your work without permission. Performs your copyrighted work.
What happens in a copyright infringement case? ›
When these rights are infringed, you can sue the person who used your work without permission and, if successful, be awarded money damages. In this way, copyright law can serve to compensate you for a third-party's wrongful infringement of your work.
What damages adequate to compensate for the infringement? ›
Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court.
What two things must a plaintiff prove to prevail in a copyright infringement action? ›
Proof of copyright infringement is often highly circ*mstantial, particularly in cases involving music. A copyright plaintiff must prove (1) ownership of the copyright; and (2) infringement— that the defendant copied protected elements of the plaintiff's worN.
Which of the following are the most frequently awarded damages? ›
Punitive damages are meant to penalize the at-fault party, while compensatory damages are used to help the injured victim. Compensatory damages are the most common and identifiable type of damage. This type of damage includes property damage, medical malpractice, loss of income, etc.
How to prove copyright damages? ›
All that is necessary is that the copying be substantial and material and that protected expression – not just ideas – were copied. Likewise, the similarity between the two works must be similarity of protected elements (the expression), not unprotected elements (the facts, ideas, etc.).
What are the damages for intellectual property infringement? ›
Intellectual property infringement damages are monetary compensation awarded to IP owners for the unauthorised use or exploitation of their intellectual property, such as copyrights, patents, trademarks, or trade secrets.
What are the damages for trademark infringement? ›
Thus, a trademark owner may recover the following categories of monetary damages under the Lanham Act: (1) disgorgement of the defendant's profits; (2) actual damages, (3) reasonable royalty, (4) attorneys' fees in exceptional cases, and (5) costs. See 15 U.S.C. § 1117(a).
What are the elements of a copyright infringement claim? ›
In an action for copyright infringement, the plaintiff must prove 1) ownership or of a valid copyright; and 2) that the defendant copied constituent constituent elements of the original work without permission. The plaintiff must own all or some of the copyright to sustain a claim for infringement action.
