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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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