What are copyright infringement damages?
What are copyright infringement damages?
Section 504 of the Copyright Act provides for the recovery of damages as follows:
Except as otherwise provided by this title, an infringer of copyright is liable for either—the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection (b); or statutory damages, as provided by subsection (c). 17 U.S.C. § 504 (a).
Thus, a copyright holder can recover 1) actual damages and 2) any additional profits of the infringer; or 3) statutory damages.
Copyright Infringement Damages — Actual Damages and Additional Profits
According to the Copyright Act, the copyright holder is entitled “to recover the actual damages suffered by him or her as a result of the infringement, andany profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.” 17 U.S.C. § 504(b). For purposes of establishing the infringer’s profits, the copyright holder must “present proof of only the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.” Id.
Thus, in an infringement action, the copyright owner can recover actual damages suffered in addition to any profits of the infringer that are attributable to the infringement (as long as these are not taken into account in computing the actual damages).
Statutory Damages as Alternative Copyright Infringement Damages
A copyright holder may elect to recover statutory damages rather than actual damages and additional profits of the infringer according to Section (c) of the Copyright Act:
[T]he copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.
17 U.S.C. § 504(c). Statutory damages are awarded “per work” infringed—if 3 songs are infringed, the copyright owner would be able to recover a statutory damage per song. In that situation, the copyright holder would be able to recover a statutory damage of at least $750 per song, yielding a total minimum award of $2,250 or a maximum award of $90,000.
Statutory damages are generally unavailable for infringement of unregistered works, except for infringement of a published work registered within three months of its first publication. See 17 U.S.C. § 412.
Willful Infringement
In some cases, a copyright holder can recover more damages where the infringement was willful. “In a case where the copyright ownersustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than$150,000.” 17 U.S.C. § 504.
In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.
See our post Copyright Counterfeiting Damages for a discussion of damages available where counterfeiting has occurred.
Fair Use Exceptions to Damages
In certain cases, the court may actually remit statutory damages if the infringer meets certain requirements.
The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyright work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.
17 U.S.C. § 504(c)(2).
Additional Copyright Infringement Damages in Certain Cases
In certain instances, a plaintiff may be entitled to more damages where a defendant incorrectly believes that certain uses of copyrighted material were fair.
[A] defendant proprietor of an establishment who claims as a defense that its activities were exempt under section 110(5) did not have reasonable grounds to believe that its use of a copyrighted work was exempt under such section, the plaintiff shall be entitled to, in addition to any award of damages under this section, an additional award of two times the amount of the license fee that the proprietor of the establishment concerned should have paid the plaintiff for such use during the preceding period of up to 3 years.
Attorneys’ Fees and Costs
A court may award costs to the prevailing party, which may include reasonable attorneys’ fees. See 17 U.S.C. § 505. However, attorneys’ fees are generally unavailable for infringement of unregistered works, except for infringement of a published work registered within three months of its first publication. See 17 U.S.C. § 412.
Copyright Legal Services
In addition to copyright registration and protection, we advise clients regarding the following issues:
You can find additional information in our Software Protection and Copyrights Overview page.
See our Legal FAQs page for the answers to more intellectual property law questions.
Klemchuk PLLC is a leading intellectual property law firm focusing on litigation, anti-counterfeiting, trademarks, patents, and business law. We help clients protect innovation and increase market share through investments in IP.
This article has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any fact-specific situation under federal law and the applicable state or local laws that may impose additional obligations on you and your company. © 2023 Klemchuk PLLC