Sheet of Music by Jon Bragg
A person obtains a copyright in a creative work if the person’s creative work is original.
A person may, but is not required to, register his or her copyright. Registering a copyright makes it easier for a person later to prove copyright infringement. A person is not prevented from proving copyright infringement if his or her trademark is not registered, but it is not as easy. The damage award a plaintiff may obtain from a successful copyright infringement lawsuit differ, however, depending on whether the copyright was registered.
When a person copies or reproduces the copyrighted work of another person, the person with the copyright is entitled to damages. Damages compensate the owner of the copyright for any harm caused by copyright infringement.
There are two main types of damages for copyright infringement in Minnesota:
2) Prescribed by statute
Actual damages in Minnesota are the actual dollar amount of loss caused by the infringer.
A damages award could also be ordered in an amount equal to the infringer’s profits gained from his or her copyright infringement.
Or it could be equal to the fee the infringer would have otherwise had to pay for a license to the copyrighted work. This figure would be the amount that the owner of the copyright would have required the other person to pay in order to give him or her permission to use the copyrighted work.
However, the owner of a copyright will not be awarded actual damages and the profits of the infringer or license fee for the same infringement. This would be called “double recovery” and would be unfair.
Damages prescribed by Minnesota statutes are damages that legislators have chosen to permit a court to award the owner of a copyright when that copyright is infringed upon, in lieu of actual damages. The owner of a copyright may choose statutorily prescribed damages in order to compensate him or her for the copyright infringement of another person.
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.
Whether the infringer intended to infringe is an issue in determining the amount of statutory damages to award. Statutes set a range of allowed awards for different states of mind: innocent, willful, or neither.
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. A number within these ranges will be chosen based on any number of factors. These factors 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.
Steps After Filing a Federal Trademark Registration Application
U.S. Trademark International Class List
Royalties: How they Work
Keeping Trade Secrets Confidential: Non-Disclosure Agreements
Patents Versus Trade Secrets
Can You Trademark a Road Sign?