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Intellectual Property Newsletter

Copyright Infringement:

Recoverable Damages for Copyright Infringement

Title 17 of the United States Code governs copyright law in the United States. In addition to other remedies, the owner of an infringed copyright may be able to collect non-statutory monetary damages (actual damages and profits) under section 504(b) or statutory damages under section 504(c). 

Non-statutory Monetary Damages

Under section 504(b) of Title 17, the owner of an infringed copyright is entitled to recover actual damages suffered as a result of the infringement and any of the defendant’s profits that are attributed to the infringement. The copyright owner has the burden to prove the infringer’s profits, and the infringer must show any “deductible expenses and the elements of profits attributable to factors other than the copyrighted work.”

Statutory Damages

Statutory damages, as provided under Section 504(c), are only available for works that were registered within the following statutory time frame:

  • the work was registered with the Copyright office prior to the infringement, or
  • the work was registered with the Copyright office within three months after publication

The owner of an infringed copyright who registered the copyright within the statutory time-frame has the choice between non-statutory monetary damages and statutory damages (but not both). By choosing to pursue statutory damages, the infringed copyright owner can collect a minimum of $750 and a maximum of $30,000 per infringement per infringer. In actions with multiple infringements, damages can quickly add up. The court has discretion to increase the statutory damages award up to a total of $150,000 for a willful infringement.

If statutory damages are not available due to the work not being registered, or if the work was registered outside the statutory time period, the copyright owner must settle for non-statutory monetary damages.

Costs and Attorney’s Fees

Section 505 allows the court to award full costs of the suit against any party and reasonable attorney fees to the prevailing party as part of the costs. However, Section 412 limits the award of attorney’s fees to works that were registered. Both published and unpublished works that fall under on of the following categories qualify:

  • where the infringement of an unpublished work occurred after registration of that work, or
  • where the infringement of a published work occurred after first publication and before registration, or
  • where the infringement of a published work occurred after first publication and after registration, but the work was registered within three months of publication

Other Remedies for Infringement

Other remedies provided for under Title 17 for infringement include injunctions, impounding and disposition of infringing materials. The court may grant a temporary or final injunction to prevent or restrain infringement of a copyright. The court may also order the impounding of all copies or phonorecords claimed to have been made or used to violate a copyright. In addition, the court may impound all articles by which the infringing copies or phonorecords can be reproduced. As part of a final judgment, the court may order “destruction or other reasonable disposition” of any infringing copies or phonorecords as well as all articles by which infringing copies can be reproduced.

Exceptions to the Enforcement of Copyright Infringement

An action in federal court for copyright infringement may be defended by certain exceptions that allow a person to infringe legally on another’s copyright. These exceptions include the Fair Use Doctrine, reproduction by libraries and archives, transfer of a particular copy or phonorecord, and other exceptions for certain performances or displays.

The Fair Use Doctrine

The Fair Use Doctrine has been codified under Section 107 of Title 17. It places limits on the exclusive rights enjoyed by copyright holder. Its purpose is to avoid stifling the creativity that the copyright law was designed to foster. Section 107 provides four factors that the court should use to determine whether a particular use is a fair use. These factors are:

  • The purpose and character of the defendant’s use;
  • The nature of the copyrighted work;
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • The effect of the defendant’s use upon the potential market for the plaintiff’s copyrighted work.

Courts have applied the Fair Use Doctrine in several different situations. For example:

  • Scholarly use—quotations of short passages in scholarly or technical works.
  • Parody, Burlesque, and Satire—courts have recognized the need to protect this sort of expression.
  • Home Taping—video taping of broadcast television for the purpose of non-commercial time-shifting is protected.

Other Exceptions to the Enforcement of Copyright Infringement

Federal law provides for several other exceptions to the enforcement of copyright infringement. Some examples follow:

  • Libraries and archives have certain limited rights to reproduce and distribute copies and sound recordings;
  • Owners of a particular copy or phonorecord may transfer that particular copy—for example, you can sell a book you purchased.
  • Certain performances and displays by teachers and students for educational purposes—you may perform parts of Hamlet in class.
  • Certain copies of computer programs—you can make a back-up disc for personal use.
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