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What damages can a copyright owner recover in an infringement case?

Copyright owners may seek actual damages and profits or statutory damages from an infringer. Several factors may affect the amount the court awards.

Copyrights legally protect a wide range of original works, including computer software, architecture, artwork and others. A company may also protect a certain expression of systems, facts, ideas or operating methods, although it cannot protect these items in and of themselves.

Protecting intellectual property with a copyright gives business owners in Washington and Oregon legal recourse if someone uses it. According to U.S. Copyright law, there are three potential ways to recover damages through litigation, as well as some exceptions.

Actual damages and profits

Businesses can recover actual damages in court, but they have to provide evidence of the losses. They can also recover the profits that the person or entity received from the use of the copyrighted material in addition to the actual damages.

The copyright owner only has to provide the gross revenue of the infringer’s profits. However, the infringer may provide deductible expenses and proof that he or she derived revenue from sources other than the profits directly from the infringed material.

Statutory damages

Before the final judgment, the copyright owner has the option to seek statutory damages instead of actual damages and profits. There may be one award for each copyrighted work, although the courts consider a compilation or derivative material as a single work. The sum of each may be between $750 and $30,000.

Statutory damages and willful infringement

Infringement often happens accidentally when companies or individuals do not do their due diligence to discover whether someone else owns the intellectual property, or what rights others may have to the information. This use is still illegal, and infringers face penalties.

Someone who uses intellectual property knowing it belongs to someone else may face much harsher penalties. The owner must prove the willful infringement, and if the court agrees, then the statutory damages may increase to as much as $150,000. However, if the court rules that the proof is not conclusive and the infringer likely did not intentionally steal the information, then the statutory damages may be as low as $200.

A copyright owner should therefore make certain that the evidence is strong enough to convince the court before taking this route.

Statutory damages exceptions

A copyright owner may lose all opportunity for statutory damages if the infringer had a reason to believe that the use of the work fell under the fair use section of the law and one of the following is true:

  • He or she reproduced the work in the course of duties while working for a library or archives.
  • He or she made copies or phonorecords for use in a nonprofit educational institution.
  • He or she performed or reproduced a transmission of a nondramatic literary work for a public broadcasting entity.

On the other hand, the court will presume that the infringement was intentional if the person used a domain name in connection with the infringing activity and provided false contact information when registering it.

Attorneys with experience in intellectual property litigation may be able to identify which strategy would be most effective for the copyright owner.