If you discover that someone has infringed on your copyrighted work, you may be able to recover your losses arising from the infringement. Most often, this happens when someone uses a copyrighted work for profit without providing attribution. Damages in copyright infringement cases usually fit into one of three categories. These are actual damages, the infringer’s profits, and statutory damages.
Actual damages are perhaps the easiest concept to understand, but these damages can be challenging to calculate. They account for the losses that the copyright owner directly suffered because of the infringement. These damages can account for reduced sales of the copyrighted work or the loss of profits from licensing it. Whether actual damages are calculated in terms of sales or licensing fees will depend on how the copyright owner has been using their work. You may need to retain an expert who can explain the scope of your damages and establish causation from the infringement.
The idea behind awarding the infringer’s profits to the copyright owner is that the infringer should not gain a benefit from their wrongdoing. The court will award the profits of the infringer only to the extent that they are greater than the actual damages incurred by the copyright owner because of the infringement. Like actual damages, damages based on the infringer’s profits are discussed in 17 U.S.C. Section 504(b). The infringer will be able to reduce an award of their profits if they can show that their profits resulted partly from factors other than the copyrighted work. They also can produce evidence of their deductible expenses to reduce this award. This burden rests on the infringer, though. The copyright owner only needs to show the gross revenue of the infringer to establish their right to these damages.
Actual damages and the profits of the infringer may be complex to calculate. Both sides may introduce expert testimony to support their conflicting positions. To provide an alternative with greater certainty, the Copyright Act also may permit a copyright owner who establishes infringement to obtain statutory damages. They would need to show that they registered their work with the U.S. Copyright Office before the infringement occurred, or within three months of publishing the work.
If you meet the registration requirement, you will have the option to choose between actual damages, in addition to any further profits of the infringer, and the statutory damages provided by federal law. Section 504(c) of the Copyright Act covers these damages. For most ordinary types of infringement, statutory damages will fall in a range between $750 and $30,000 per incident of infringement. The judge will determine the amount after considering the seriousness of the infringement and the infringer’s ability to pay. If the infringer shows that they infringed innocently, they may need to pay only about $200 per incident. If the copyright owner shows that the infringement was intentional, the court may order the infringer to pay up to $150,000 per incident. When a case involves many incidents of infringement, statutory damages can become immense.
