How Do I Enforce My Copyright, and What Monetary Damages Can I Get?

If you have created an original work, it is automatically protected by copyright.  If someone uses your copyrighted work without permission  (called “infringement”), copyright law provides ways to obtain compensation for that unauthorized use, or to put a stop to such use entirely. 

To enforce your copyright, you must first register your copyright.  You can do through the United States Copyright Office’s online portal, by paying a small fee.  You must then sue the person who has made unauthorized use of your copyrighted work in federal court.

The court will decide, usually through a jury trial, whether the accused infringer has actually copied your work.  Literal copying is not required.  You can prove infringement by showing substantial similarity between your original work and the copy – for example where text is the same except some words have been changed.  You can also prove infringement by showing that the infringer copied non-literal aspects of your original work, such as the characters in a story. 

In addition to proving infringement, you will also have to establish damages – the appropriate amount of compensation for the infringement.  Damages can be either (1) your actual damages, plus any additional profits of the infringer; or (2) statutory damages, within a range set by the Copyright Act itself.

Actual damages suffered as a result of infringement include lost sales or licensing revenue, and any other provable financial losses due to the infringement.  For example, if a photographer normally sells her work for $100 per photograph, someone who copied one of the photographer’s pictures 1,000 times might owe the photographer $100,000. 

Other types of actual damages, such as a decrease in sales of a copyrighted book due to the publication of an infringing work online, may be more difficult to prove, and you may need to retain an expert to calculate, and to explain to the jury, the amount of the losses.  

The infringer’s profits can be recovered, in addition to the copyright owner’s losses, by proving the infringer’s gross revenue.  The burden then falls on the infringer to prove how much of that revenue is attributable to factors other than the copyrighted work.  An infringer’s profits are only recoverable to the extent they exceed the copyright owner’s actual damages.

Statutory damages avoid the complexities of proving actual damages.  The Copyright Act authorizes a court to determine a just award within a range set by law.  The law provides for $750 to $30,000 per work that is infringed, but the range may go as low as $200 or as high as $150,000 depending on the court’s assessment of the infringer’s culpability. 

Courts have vast discretion over the award of statutory damages.  Moreover, statutory damages are unavailable if the infringement occurred before you registered your copyright.  For that reason, among others, it is crucial to register your copyrighted works in a timely fashion. 

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