A person with a copyright who prevails in a copyright infringement lawsuit is entitled to damages. Damages may either be the plaintiff’s actual damages in addition to the defendant’s profits from infringing, or if the plaintiff prefers, damages allowed by statute.
Actual damages could include profits the plaintiff lost due to the defendant’s copyright infringement.
Actual damages could include loss of the license fee defendant should or would have had to pay to plaintiff in order to have the plaintiff’s permission to do what the defendant did in infringing.
A plaintiff will not receive the defendant’s profits under both actual damages and damages in the form of defendant’s profits. The plaintiff will recover the amount defendant’s profits as damages only one time.
A plaintiff may elect instead to be awarded damages provided by statute. In order to elect statutory damages, the plaintiff must have registered his or her work with the Copyright Office prior to the infringement.
The purposes of the statutory award of damages is to relieve copyright owners from having to prove actual damages or the defendant’s profits from infringing, to provide adequate compensation to the copyright owner, to remove benefits of infringement to infringers, to deter the infringer and others, and if appropriate, to punish the infringer.
The state of mind of the infringer is an issue in awarding statutory damages (ex: innocent, willful, or something else). Statutes set a range of allowed awards for each category of state of mind: innocent, willful, or neither.
- For innocent infringers, the award of statutory damages will be between $200.00 and $30,000.00 for each copyrighted work that has been infringed upon.
- For willful infringers, the award of statutory damages will be between $750.00 and $150,000.00 for each copyrighted work that has been infringed upon.
- If the infringement is determined to be neither innocent nor willful, the award of statutory damages will be between $750.00 and $30,000.00 for each copyrighted work that has been infringed upon.
An amount within the applicable range will be awarded for each copyrighted work that is infringed upon. These amounts are not awarded for each copy of each copyrighted work infringed upon. These amounts are also not awarded for each defendant that participated in the infringement of a copyrighted work.
A number within these ranges will be chosen based on any number of factors. Some factors considered in determining the amount within a range may include: revenues lost by the plaintiff as a result of the defendant’s infringement, expenses saved or profits made by the defendant by infringing, the benefits to the defendant of infringing, the value or nature of the plaintiff’s copyright, the duration and scope of the defendant’s infringement, deterrence of the defendant and others, the defendant’s financial situation, the number of works the defendant infringed upon and the number of awards the plaintiff is receiving, and if the defendant’s infringement was willful, whether to punish the defendant.