We spend a significant amount of time on this blog discussing entertainment law, including copyright law.
The legal protections afforded to copyright holders are significant, but they must be policed to counteract infringement. This can be challenging to do, especially given the variety of ways that misappropriation can occur.
Yet, even those who spot illegal use of their copyrighted work may struggle to determine what damages they may be able to collect through a copyright infringement lawsuit. We hope this post will provide clarification.
Under federal law, there are two ways that copyright infringement damages can be calculated. The first involves the calculation of actual damages and the infringer’s profits from the infringement. This may sound easy enough, but it can actually be quite challenging because the law requires the copyright holder to present evidence of the infringer’s revenues.
At that time the infringer becomes responsible for showing which portion of that revenue is attributable to non-infringement activities. But determining an infringer’s revenues can be challenging task, especially when it isn’t cooperative.
The second type of recoverable damages are statutory in nature. Here, a copyright holder may recover up to $30,000 for each infringed work. If it can be demonstrated that the infringement was willful, then statutory damages can reach as high as $150,000. Of course, by accepting statutory damages, a copyright holder foregoes the ability to recover actual damages. Therefore, those whose works have been infringed upon need to carefully consider which type of damages is best for them under the circumstances.
As readers of our blog know, copyright infringement is an all too common reality in our society. Successfully utilizing the protections afforded by the law often requires legal action, though, whether in the form of injunctive relief, a claim for damages, or both. Those who find themselves facing these issues may therefore want to discuss them with an experienced attorney of their choosing.