Sunday, October 16, 2011

Statutory Damages for Copyright Infringement

Last time, we talked about remedies for copyright infringement. A copyright owner can get an injunction, ordering the infringer to stop the infringing activity. He can have infringing copies impounded and destroyed. And he can get the actual damages he suffered due to the infringement of his copyright or violation of his moral rights.

One problem is that some copyright infringements don't actually result in a great deal in actual damages or profits.  To solve this problem, the Copyright Act has provisions that provide for a different remedy, called statutory damages. Copyright owners may elect to receive this type of damages instead of actual damages in certain situations. If elected, the copyright owner can receive an amount that the court considers fair, ranging from $750 up to $30,000 for each infringed work. The court will decide what amount within that range is fair, and will generally consider how much actual damage the copyright owner suffered, and how much the damages should be to deter others from infringing the same kind of copyright protected work. If the copyright owner can prove that the infringer did so willfully, the statutory damages can be increased up to $150,000 per infringed work. Similarly, if the infringer can prove that he was not aware and had no reason to believe his acts constituted infringement, the court can decrease the statutory damages to no less than $200 per infringed work.

One key point is that copyright owners must register there works with the Copyright Office within certain deadlines in order to have the award of statutory damages. The work must have been registered before the commencement of the infringement and must have an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement. The Copyright Act requires that there will be no award of statutory damages for (1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or (2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.

Probably the most important take home message is that copyright owners must register their works within certain prescribed periods in order to have statutory damages available in the case of infringement. And without ths possible remedy, enforcing your copyright may not be economically feasible.

Next time, we'll talk a bit about international copyright protection. If you have any questions about copyright law, email us or post them on the blog.  The email is .  We also have a free pamphlet discussing copyright law and how it effects small businesses and individuals.