Copyright   Infringement

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Copyright Infringement

Copyright infringement is the unauthorized use of works covered by copyright law, in a way that violates one of the copyright owner's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.

Copyright Infringement Damages

Section 504(a) of 17 U.S.C. grants three types of remedies for copyright infringement damages:

  • Actual damages in the form of their lost profits in order to “repair” the damage
  • The defendant’s profits to prevent infringers from benefiting from the illegal act
  • Statutory damages, when unable to prove actual damages or profits and if the work is federally registered

A key concept in this federal statute is that it allows awards based on the copyright owner's actual damages, which in practice has meant the owner's lost profits or the extent to which the market value of the copyrighted work suffered harm.  In other words, the extent to which the copyright owner's ability to profit from the work is reduced by the infringement.  Other than in the latter case, the amount of damages has to be measurable, and the statutes and case law have established several criteria in this respect. If both defendant and plaintiff occupy the same market, courts tend to prefer lost sales measurements, not unlike trademark or patent infringement; otherwise, the courts tend to prefer a “reasonable royalty” or a “market value” test to determine the hypothetical fee that would have been received. Additional concepts of damages may apply too. 

By their very nature, damages awards of this type require the participation of qualified copyright infringement damages expert witness testimony.  IPmetrics' professionals have extensive experience providing copyright infringement damages expert reports and court testimony.

Statutory Damages

For works that have been formally registered within 90 days of publication, the copyright owner also has the choice of recovering damages amounts determined by statute. In cases of willful infringement, the court may increase this amount up to a maximum of $150,000 for each work. In contrast to trademarks and patents, copyrights do not need to be registered to be protected, and registration formalities are only necessary to be eligible for statutory damages awards.

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