The potential threat of a copyright infringement lawsuit is justifiably the biggest concern for anyone engaging in infringing acts. On the opposite end of the spectrum, however, are copyright owners who discover that their copyright is being infringed on and wish to take immediate legal action to stop it and seek damages where applicable. The biggest question looming on these copyright owners’ minds is what types of remedies they may be entitled to if they can prove copyright infringement.
The Copyright Act of 1976 specifies three distinct types of monetary remedies: statutory damages, actual damages, and the defendant’s profits. Different elements of proof must be satisfied in order to recover each of the remedies, and collecting on multiple remedies is possible as long as they aren’t duplicative collections. For example, a plaintiff can collect on actual damages and the defendant’s profits as long as those profits aren’t already included in the actual damages. There is one exception to this rule, and that is in regards to statutory damages. When it comes to statutory damages, the copyright owner must choose to either recover actual damages and defendant’s profits or statutory damages, but not both. Once a copyright owner elects to receive statutory damages, they forfeit the right to seek actual damages and the defendant’s profits.
Statutory damages rewards are stipulated within a statute rather than being calculated based on the degree of harm to the plaintiff. Statutory damages in copyright infringement cases range from a minimum of $200 to $150,000 per work, and the amount of statutory damages that are awarded depends on the intent of the infringer. If the defendant can establish that the infringement was done unknowingly or innocently the court may reduce the award of statutory damages to $200 per work infringed. If the defendant willfully infringed on the copyright, meaning they either knew or easily should have known they were infringing, the court may increase the statutory damages up to $150,000 per work. If neither innocence or willful intent can be concluded from the evidence, the statutory damages can range anywhere between $750 and $30,000 per work. An important note about statutory damages is that they are based on the number of works infringed on, not the number of infringements on a work.
Actual damages are real damages to compensate for the copyright owner’s loss due to the infringement. Actual damages are generally difficult to prove precisely, but there are still several characteristics that courts look at to determine how much actual damage has been done, including the diminution in market value, lost profits, and a lost opportunity to license. If a copyright owner can prove that their copyrighted work has lost fair market value, or they have lost profits or an opportunity to exclusively license their copyrighted work due to the infringement, they may be entitled to more damages. Attorney fees are also generally included in actual damages.
The third type of monetary remedy comes in the form of the defendant’s profits. A plaintiff may recover both actual damages and the infringer’s profits as long as those profits weren’t already calculated into the actual damages. These profits do not include any costs to production, which the defendant may remove from the profit total. Only those profits which are attributable to the infringement can be claimed.
If you believe your copyright has been infringed on and you would like to know more about your legal options and what you may be entitled to, you should consult an intellectual property attorney to learn your rights.