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Copyright Infringement Damages: The Basics
There are several types of damages or remedies which may be recoverable by the
copyright owner whose rights are infringed. A consideration of them is often
a key in the copyright owner’s determination of whether to proceed with
a claim. Frequently, these remedies will far offset the costs, and inconvenience
of the copyright owner’s infringement claim. However, this is often not
understood. Or, this is often not fully appreciated by copyright owners who
often think that pursuing a matter "simply isn't worth it." Practiced
attorneys, familiar with the processing of these cases, their idiosyncracies,
and how damages can be computed and recovered, can be an invaluable tool in
helping to maximize recoveries, and in assisting the copyright owner to do a
careful assessment. This assessment often involves little or no cost.
Infringer Profits
Perhaps the most onerous remedy for the copyright infringer is their liability
to the copyright owner to remit any profits which the infringer has received.
An object of this remedy is to disgorge from the infringer their ill gotten
gains. There are times when these profits exceed by any measure a far lesser
amount which the copyright owner would have charged for use of their work. When
profits are recoverable, it is not unusual for there to be a $200,000.00 settlement
if “profits” in the case warrants it, even where the copyright owner
might have charged only $5,000 for their work. These “profits” are
often times determined in settlement negotiations prior to a law suit. Over
one-half of IPG’s cases involve a computation of the infringer profits,
and a computation of how much of these profits the copyright owner is to receive.
When litigation is required, the Federal Rules of Civil Procedure, allow the
copyright owner “discovery” regarding profits. The copyright owner
can often learn about the infringer’s profits through document subpoenas,
depositions, and written questions. Pre-infringement registration is generally
not a precondition of this remedy.
Punitive Damages
Recent cases have seen a number of courts making awards of punitive damages
in copyright infringement matters. These are damages which punish the infringer
for wrongful conduct. Punitive damages are an important tool in the copyright
owner’s arsenal. IPG Attorneys anticipate an expansion of this remedy,
as more an more litigants will likely request punitive damages based on the
recent case trend.
Copyright Owner Losses
The copyright owner’s ability to recover their “loss” has
been the subject of much litigation in recent years. An actual financial loss
is potentially recoverable. However, several courts have extended the remedy
that is recoverable under the rubric of a “loss” to include the
copyright owner’s loss of a "license fee" in appropriate cases.
In these cases the court implies the existence of a loss, computed on the basis
of what the license fee would have been for the use of the copyright owner’s
work. This rule has spawned a great deal of argument regarding how the license
fee should be computed, and when it can be awarded. Other issues include who
is competent to give testimony, and what expert witnesses may be needed, as
regards the issue of license fees. IPG Attorneys have therefore been involved
in the retention of experts in an expansive array of experts in the various
media in which our cases are involved.
Statutory Damages
The copyright law allows for a discretionary award of “statutory damages.”
This is a discretionary award, designed to deter infringement, to set an example,
and to give the copyright owner a remedy they might not otherwise obtain due
to the lack of infringer profits or their own losses. Statutory damages can
be awarded in cases where an infringement has occurred after registration of
a work. There are also some instances where statutory damages can be obtained
for infringement occurring before registration (e.g., if the registration is
made within three months after the first publication of the work). Additionally,
there is authority for awarding statutory damages, even when there is no registration
prior to the infringement, if there is a violation of the Digital Millennium
Copyright Act.
Attorneys Fees
The copyright law allows for the recovery of attorneys fees in some cases. The
award is discretionary with the court. Generally, attorneys fees can be awarded
if the infringement occurred after timely registration of the copyright, or
in the event of a violation of the Digital Millennium Copyright Act.
Other Remedies
In addition to the remedies discussed above, the copyright law also allows for
injunctive relief, and seizure of infringing merchandise or work. These other
remedies can be of immense concern to infringers who have infringing merchandise
in inventory. IPG Attorneys have seen the prospect of injunctive relief play
an important role in the resolution of cases involving everything from infringing
bed linens to wine labeled with infringing art work.
What Are Your Rights and Liabilities?
In order to assess your right to recover any form of damages, or your liability
for any form of damages, it may be useful to speak to an attorney who practices
in the area of copyright law. They may be able to guide you as to what remedies
are available in any particular case. Additionally, and perhaps more importantly,
they may be able to explain what is involved in the legal proceedings which
may be necessary to obtain any remedy, and give you a clear and candid view
of whether it is worthwhile to pursue or defend a claim. True, some cases must
go to trial, and involve extensive work. However, IPG Attorneys have also seen
others resolve in a matter of days! Each situation tends to be different, and
must be evaluated in its own terms. This is where an experienced professional
may be of help.
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