A frequent question we receive here at Kennedy Law from potential copyright clients is what copyright damages are available for infringement. Under 17 U.S.C. § 504, a copyright infringer may be liable for statutory damages, actual damages, and profits.
17 U.S.C. 412 establishes that statutory damages are only available in the United States to owners of works registered prior to the infringement; however, the Copyright Statute provides a three month grace period after publication of the work for registration. Statutory copyright damages are awarded per work at an amount between $750 to $30,000. The amount is determined by the Court, which will consider factors such as the purpose of the infringing use and the value of the copyrighted work.
If the Plaintiff can establish willful infringement, the statutory damage award may be increased up to $150,000 per work. However, if a Defendant can establish that they are an “innocent infringer,” the statutory damage amount may decrease to $200 per infringement. A court may find innocent infringement where “the infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright.” 17 U.S.C. 504.
Actual Copyright Damages
Where statutory damages are unavailable, the copyright claimant may only recover actual damages and profits. Actual copyright damages, also known as compensatory damages, are demonstrable, quantifiable damages that the copyright owner has suffered as a result of the infringement. Actual copyright damages are most often supported by expert opinion and forensic accounting.
A Plaintiff may seek disgorgement of an infringing Defendant’s profits, but will generally only recover this amount if it exceeds the copyright owner’s actual damages.
The Plaintiff has the burden to demonstrate the Defendant’s gross revenue attributable to the infringement. Once the Plaintiff has established gross revenue, the Defendant has an opportunity to prove deductible expenses and profit attributable to something other than the infringing work, commonly known as apportionment, to reduce the potential damages award.
If you have potential copyright damages or if you have been sued for copyright infringement, contact the Dallas lawyers at Kennedy Law, PC today.