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Damages for copyright infringement may be actual damages or statutory damages.
Copyright Infringement Damages
Actual Damages
Actual damages include the profit that the copyright owner lost as a result of the infringement (for example, a license fee) and any additional profits the infringer received as a result of the infringement. These damages must be proven in court and can be difficult to establish.
Statutory Damages
Statutory damages are an alternative to actual damages in that the awarded amounts are set by statute to be between $750 and $30,000 per infringed work and can go up to $150,000 in cases of willful infringement. To qualify for statutory damages, the copyright owner must have registered their original work either (1) within three months of publication of the work or (2) before the infringement starts.
Fair use is a common defense to a copyright infringement claim based on the permitted use of copyrighted works under certain circumstances without seeking permission from the copyright owners.
The permitted uses of a copyrighted work without permission under fair use include:
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Criticism
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Comment
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News reporting
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Teaching
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Scholarship and
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Research
Fair Use
Determining whether a fair use defense may apply involves the evaluation of several factors, including:
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Purpose and character of the use
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Nature of the copyrighted work
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Amount and substantiality of the portion used
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Effect on the potential market and
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Value of the copyrighted work
Copyright Infringement
An owner of a copyright in a creative work has the exclusive rights to reproduce, adapt, publish, perform, and display their work. Copyright infringement is copying, distributing, or displaying an original work without the owner's permission.
The US Copyright Act is the legal foundation for copyright law in the United States. It was initially enacted in 1790 and has undergone revisions over the years. In 1998, the Sonny Bono Copyright Term Extension Act was introduced, which extended the copyright duration for most safeguarded works from 50 to 70 years following the author's death. Furthermore, the Digital Millennium Copyright Act (DMCA) was introduced to address digital copyright concerns.
Basis of Copyright Protection
A copyright infringement claim requires that a plaintiff demonstrate:
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Ownership of a valid copyright in an original work
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Actional copying of the original element of the original work
Copyright Infringement Claim
The actionable copying requirement may be demonstrated by:
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A showing of access to the original work
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A substantial similarity to the original work, which may be shown using a side-by-side comparison of the works.
Possible defenses to copyright infringement include:
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Fair use: A permitted use of a copyrighted work without permission.
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Independent creation of the work: A creation of the work without actional copying.
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Statute of limitations: The copyright owner must file a copyright infringement suit within three years of knowing or should have known of the infringement.
Copyright Infringement Defenses
How TCP Law Can Help
A copyright attorney at TCP Law can help you evaluate whether using your original work without your permission qualifies as copyright infringement. A copyright attorney can also help you understand the strengths and weaknesses of your claims and assist you in developing an appropriate enforcement or defense strategy.
If you have general copyright questions or want to discuss your specific copyright matter, please contact me at john@tcplawfirm.com or at 917-612-1059.