So, if you have a copyright protected work, and another person copies it without your permission, you must file a lawsuit against the person who copied your work. If you can prove that the person infringed your rights, what can the court do for you?
The first class of remedies a court is authorized to grant are known as injunctions. The Copyright Act authorizes courts to grant both preliminary and permanent injunctions, ordering the infringing party to stop the copyright infringement and any violations of the author's rights of attribution and integrity in works of visual art. In addition, the Copyright Act has provisions for impounding infringing copies and materials used to infringe. Upon final judgment of infringement, these impounded things can be destroyed.
The second class of remedies a court can grant are damages and profits. The successful plaintiff in a copyright case is entitled to recover the actual damages he suffered due to the infringement of his copyright or violation of his moral rights. Additionally, he is entitled to collect any of the infringer's profits that are attributable to the infringement that are not already accounted for in the plaintiff's damages. Generally, the actual damages will be the sales lost by the plaintiff to the infringer due to the infringer if the infringer is a competitor of the plaintiff. Alternatively, if the infringer is not a competitor, the damages may take the form of a royalty payment for the infringing activity.
One important aspect of proving damages in a copyright case is that the copyright owner only has to prove the gross revenue of the infringer. The defendant then has the burden of proving how much should be deducted from the gross revenue for his expenses and how much of the gross revenue is due to factors other than his infringement.
As you can imagine, some copyright infringements might not generate a great deal in actual damages or profits. The Copyright Act has provisions that provide for a different remedy, called Statutory Damages, in such instances. We'll talk about these provisions next time. In the meantime, if you have any questions about copyright law, email us or post them on the blog. The email is JDellinger@mainspringlaw.com . We also have a free pamphlet discussing copyright law and how it effects small businesses and individuals.