Remedies for Copyright Infringement

If you believe that your copyright has been infringed upon, it is critical that you pursue one or more of the remedies provided under the federal Copyright Act. Depending on the specifics of your situation — and, most importantly, whether you’ve registered your copyright — you could be eligible for considerable damages. Available remedies for copyright infringement are outlined below:

Monetary Relief

In most copyright cases, monetary relief falls under one of a few main categories: actual damages, the infringer’s profits, and statutory damages.

Actual Damages

Actual damages refer to profits lost due to infringement.  Actual damages could involve lost licensing revenue, lost sales, or other related financial losses. Actual damages must be proven by the party asserting the claim for coyright infringement by a preponderance of the evidence. A preponderance of the evidence means that your evidence “preponderate” over or outweighs the other evidence.  Unfortunately, in many cases, it can be difficult to prove that the plaintiff lost profits explicitly due to the act of copyright infringement. Defendants may point to a variety of other factors present in the plaintiff’s claimed loss of profits.

Profits of the Infringer

If the profits of the infringer exceed those lost by the copyright’s owner, the court may award these profits to the infringed-upon party. As with actual damages, however, this can be difficult to prove. Federal copyright law mandates that the victim must present proof of the infringer’s revenue, while the infringer must provide proof of deductible expenses and any factors other than infringement that might account for his or her increased profits.  All of the information pertaining to the infringer’s profits most likely comes out in the discovery phase of the litigation process.

Statutory Damages

Because actual damages and the infringer’s profits can be difficult to establish, or are often zero or nominal, federal copyright infringement  allows for statutory damages, which are set by law in the copyright statute.  Statutory damages do not automatically apply, but must be elected by the copyright owner prior to final judgment, in lieu of actual damages and the infringer’s profits.  Victims of infringement must choose between statutory damages or actual damages (plus the infringer’s profits, when applicable). It is not possible to secure both statutory and actual damages. Finally, statutory damages can range dramatically based on the circumstances of the infringement. Generally, statutory damages may fall anywhere between $750 to $30,000 per infringement at the discretion of the court. Factors taken into consideration may include the extent of the infringement and whether it occurred intentionally.  If the infringement is done willfully then a copyright owner may be entitled to damages of up to $150,000 per infringement.  Whether the infringed-upon party previously registered for copyright protection with the United States Copyright Office can play an important role in deciding whether the infringer committed the misappropriation willfully giving rise to statutory damages, another reason why registration of your copyright at the U.S. Copyright Office is so important.

Injunctions and Court Orders

In addition to securing one or more of the types of monetary relief outlined above, victims of  copyright infringement can also seek court action to minimize future damage. For example, injunctions can stop infringers from using works without explicit permission. Courts may also execute search orders, which allow the victim to inspect the infringer’s premises for evidence of infringement — and to remove these signs, if applicable. 

In some copyright cases, preliminary injunctions and other court orders may be carried out early on. To secure a preliminary injunction, the plaintiff must successfully prove that the lack of early court action would lead to irreparable harm. The plaintiff must also demonstrate that the merits of the case indicate likely success with ensuing civil action.

Attorney Fees

Not only can plaintiffs secure damages to cover lost profits related to the act of infringement, they may be eligible for coverage of attorney fees and other court costs. Attorney fees may be awarded at the court’s discretion. Section 505 of the Copyright Act grants “wide latitude to award attorney’s fees based on the totality of circumstances in a case.”

Criminal Repercussions

While most copyright cases involve civil damages, copyright issues can also be deemed a matter of criminal law. Typically, criminal proceedings only occur for the most egregious copyright cases, in which infringement is believed to harm the greater community. Depending on the nature of the crime, the infringer could be forced to pay extensive fines or even spend time in jail.

By seeking the remedies highlighted above, you can minimize the destruction caused by copyright infringement, while also preventing future acts of infringement — and delivering justice.