17 USC § 504 allows a Plaintiff in a Copyright Infringement case to choose between Actual Damages or Statutory Damages, provided the Plaintiff meets the qualifications.
Proving Actual Damages in a copyright infringement case requires the Plaintiff to provide evidence of lost profits or unjust enrichment by the Defendant’s infringing use. This will generally require expert witnesses, forensic accountants, and many hours of expensive work, to the point that the costs of pursuing the case may far outweigh the financial remedies.
Actual Damages may still be the superior option in cases with particularly valuable works or high amounts of infringements. Additionally, they are always available, regardless of whether the copyright was properly registered.
Statutory Damages do not require any actual showing of loss by the Plaintiff. In fact, the Plaintiff only needs to show 2 things:
- Possession of a properly registered copyrighted work as defined by 17 USC § 412, meaning:
- Effective registration date before the infringement occurred, OR
- Effective registration within 3 months of first publication
- Infringing use by the Defendant
A Plaintiff who successfully proves the infringement in a Statutory Damages case is eligible for a minimum of $750, and a maximum of $30,000 per infringement. The award may also go as low as $750 per infringement, or even $200 if the infringer can show honest unawareness of the copyright and that he/she had no reason to believe that an infringement was being committed. Additionally, 17 USC § 504(a)(2) allows Statutory Damages to be increased to a maximum of $150,000 per infringement if found to be willful. This would require an additional showing by the Plaintiff that the Defendant knew the work was copyrighted, but proceeded with the infringement anyway.
While Statutory Damages provide for up to $30,000 or $150,000 in damages, these amounts only represent the maximum range of damages. The actual amount awarded will be left up to the court. Additionally, 17 USC § 505 allows the court, in its discretion, to award recovery of litigation costs and attorney’s fees to the prevailing party. Courts may consider several factors in establishing a potential award of both damages and fees, including:
- Commercial use
- Malice or bad faith
- Value of the work
- Volume of infringing use
Thus, receiving the maximum amount possible is not as simple as showing up with a registration and evidence of infringement. Statutory Damages are intended to provide greater access to remedies for plaintiffs who cannot prove Actual Damages, and the factors listed above are a sort of attempt to approximate Actual Damages. They are not meant to provide the plaintiff with a financial windfall every time an infringement is discovered.
Special thanks to Collin Ogata for drafting this post!
Photograph has no known copyright; however, attribution is given to Hartlepool Cultural Services