November 24, 2020
November 24, 2020
The Copyright Act protects creative works of all kinds, including:
An odd wrinkle of U.S. copyright law is that a creator owns a copyright at the moment of creation, but cannot enforce that copyright in court until the copyright is registered. Registration is simple, but timing is everything. We will address that in a separate article.
Once the United States Copyright Office registers your copyright, you can take action if another party uses your work without permission or license. What relief can you seek if someone infringes on your copyright? Here is an overview of legal remedies that might be available if your copyright is infringed.
The Copyright Act provides for monetary compensation for copyright infringement. A copyright owner can choose from two different types of damages to pursue.
“Actual damages” are the actual, provable financial harm that results from copyright infringement. To determine actual damages, courts look at lost market value. This can be measured by the profits the copyright owner would have earned but for the infringement, or by the royalty it would have received had the infringer properly negotiated a license.
In addition, a copyright owner can recover “any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.” Put another way, if the infringer made profits from the copyrighted work, and those profits not captured in the actual damages analysis, a court may order the infringer to pay those profits to the copyright owner. This is a powerful remedy when the evidence supports it.
Proving actual damages and profits can be difficult in some cases. In other cases, actual damages may be minimal and thus hard to pursue in a cost-effective manner. Fortunately for copyright owners, the Copyright Act provides an attractive alternative in the form of statutory damages. The idea is that regardless of whatever the actual monetary loss may be, a copyright owner can opt to seek a dollar amount set by law irrespective of proof.
Statutory damages for copyright infringement generally range from $750 to $30,000. This is per infringement, meaning the statutory damages will be multiplied for multiple acts of infringement.
Importantly, statutory damages are multiplied where the infringement is “willful” – that is, intentionally or with reckless disregard for the rights of the copyright owner. Where willful infringement can be proven, statutory damages range up to $150,000 per infringement. Though copyright infringement is sometimes innocent, many infringers know exactly what they are doing when it comes to intruding upon someone else’s copyright.
Evaluating potential damages, and deciding whether to pursue actual or statutory damages, are critical to your enforcement and litigation strategy. A knowledgeable IP lawyer can review your options and put together an effective plan of action for your situation.
When someone is infringing your copyrighted work, it may not be enough to file suit and seek a damages award. In some cases, it is necessary to seek a court order to immediately stop the infringement. If the infringer’s conduct threatens to irreparably damage your business – for example, by publishing your software of distributing a film without a license – an injunction may be appropriate.
An injunction is a court order that prohibits a party from doing something or demands that a party does something. In the case of copyright infringement cases, an injunction typically orders for the infringing party to stop publishing or distributing the copyrighted material. Injunctions can be:
The court can also order that infringing copies of a work be seized, impounded, or destroyed.
Additionally, in a copyright case, the court has discretion to award reasonable attorney’s fees and costs to the prevailing party. If you prevail, the court will look at the totality of the circumstances and determine whether the infringer should pay your fees for legal representation. Of course, this is a double-edge sword. If the accused infringer prevails, the court will consider whether it may recover its fees.
Copyrights can be a highly valuable form of intellectual property. When someone infringes your copyright, it is important to take swift action to protect your assets. This may be involve a cease-and-desist letter, a takedown notice, or, where appropriate, a legal action. At Maxwell Goss Law, we have extensive experience helping intellectual property owners protect their assets and their business.
Maxwell Goss represents plaintiffs and defendants in all stages of federal and state court litigation and provides strategic advice on intellectual property and business law matters.