Copyright Infringement Damages: What Creators Need to Know in 2024
A recent US Supreme Court decision regarding damages for copyright infringement prompted me to take a closer look at how these damages are calculated, with a deep dive into statutory damages.
In the event of a copyright infringement, the copyright owner can recover:
the copyright owner’s actual damages plus any additional profits realized by the infringer; or
statutory damages.
Actual Damages and Profits.
As the name suggests, "actual damages" refers to the actual harm suffered by the copyright owner due to an infringement. Typically, this means lost profits from sales that the copyright owner might have made if the infringement had not occurred.
In addition, the copyright owner may be entitled to the profits that the infringer earned from the unauthorized use of the copyrighted material.
Claiming actual damages is more complex and burdensome (i.e., more expensive) compared to statutory damages, because the copyright owner must provide proof of loss (such as sales records, financial statements, and other documentation that shows a decrease in revenue directly attributable to the infringement), whereas such proof is not necessary for statutory damages.
Statutory Damages.
Statutory damages are damages that are awarded by the court based on the range of damages established “by statute”; in this case, the US Copyright Act.
If eligible, statutory damages are particularly useful when proving actual damages may be difficult.
Statutory damages range from $750 to $30,000 per work. If the infringement was willful—meaning the infringer knew it was wrong—the amount can go up to $150,000 per work. (Don’t forget—even accidental infringements are still infringements and subject to damages.)
$750 to $30,000 (or even $150,000) is a huge range. How are statutory damages calculated? Well, it depends on various factors, as weighed by the court, including the infringer's intent, the harm caused to the copyright owner, and any profits the infringer gained from using the work.
Calculating Statutory Damages.
First, let’s clarify that damages are calculated per work infringed, not per act of infringement.
“Per work” means each individual work; e.g., each song, each photograph. This means that if five songs, or five photographs, are infringed, the copyright owner would be able to recover the applicable statutory damage for each one, for a total of five separate damages awards.
For instance, a website uses five photographs without permission. Five works were infringed, even if (arguably) this is just one act of infringement.
Using $750 minimum per work: $750 x 5 photographs = $3,750.
Using $30,000 maximum for non-willful infringement: $30,000 x 5 photographs = $150,000.
Using $150,000 maximum for willful infringement: $150,000 x 5 photographs = $750,000.
As you can imagine, most cases settle before they get to court. The specter of statutory damages provides substantial negotiating leverage.
Is Your Work Eligible for Statutory Damages?
“Eligibility for statutory damages hinges on timely registration.”
For a work to be eligible for statutory damages, it must be registered with the US Copyright Office either:
before the infringement began, or
within three months of first publishing the work.
Yes, you can still sue for actual damages and profits if your work was not timely registered. However, attorney fees can cost tens of thousands of dollars even with modest copyright litigation. Loss of statutory damages can render a suit worthless.
To find out more about protecting your expertise, check out the Copyright Protection Guide here.
IP is Fuel 🚀
Erin