Copyright Infringement Damages – Copyright Registration is Key

Copyright is a protection granted to original works.  It’s important to protect them by registering them, because without them you will find it difficult and expensive to stop someone who is infringing.

• Registration of a copyright is extremely important.
• Without registration the creator of the subject being infringed (photo, movie, song, etc.) cannot receive statutory damages or an award of attorney fees. 
• Additionally, without registration it is often difficult to prove when a work was created.
• Without registration, the only thing they can recover is actual damages or profit.  First you must prove that there was infringement and then you must prove that you were actually harmed (this will often be the value of a license), but the cost of the lawsuit will far exceed what you will likely recover.  However, if the copyright is registered, and you prove infringement, you can receive up to $150,000 per violation for willful infringement plus attorney fees.

A qualified copyright attorney can help protect your creation.

Registering a copyright early is extremely important

For purposes of this article I will focus on copyrights of photographs (however, this is applicable to all copyrights).  The first question I ask of a potential client when they say that their copyright has been infringed is whether the work has been registered with the U.S. Copyright Office.  This is because even though photographers (and other creators of original work) establish copyright protection from the moment they shoot the photograph, the protection is often useless if the image was not registered prior to the infringement (or within three months of its first publication).

Registration is required to recover attorney fees and statutory damages 

These are often the deterrent that causes infringers to pay without litigation. Courts may award statutory damages between $750 and $30,000 per work; the minimum damage award is reduced to $200 if the infringement was innocent; and the maximum increased to $150,000 if the infringement was willful.  Willful infringement usually means knowledge of copyright protection, which is a good reason to place a copyright notice on all of your work.

Courts determine the amount of statutory damages

Courts have considerable discretion in awarding statutory damages, and usually render a judgment after considering factors such as deterrence, the infringer’s state of mind, compensation, and the value of the copyright.  Even when a court rules that the copyright infringement was willful, they can determine that a $30,000 statutory award is appropriate.  Getaped.com, Inc. v. Cangemi, Shields and Ski Cycle Hut, 188 F.Supp.2d 398 (D.C.N.Y. 2002).

Without registration, actual profit or damages must be proven 

With photographs, actual damages is often the fair market value of a license for the image.  Profits, especially if the work was used in advertising, can be difficult to prove.

In Jack Mackie v. Connie Rieser and Seattle Symphony Orchestra Public Benefit Corporation, 296 F.3d 909 (9th Circuit, 2002), Mackie created a work called “The Tango.” The Seattle Symphony used an unauthorized scanned image of “The Tango” as part of a 24-page promotional brochure for its 1996-1997 season that was mailed to 150,000 people.

Mackie then sued for infringement. The work had not been registered, so Mackie had to seek actual damages, including a theoretical royalty payment. The court ruled that Mackie was only entitled to $1,000 in damages, which represented “what a willing buyer would have been reasonably required to pay a willing seller for [the] work,” and disregarded Mackie’s allegation that he would have licensed the work pre-infringement for $85,000.  The court also rejected Mackie’s claim for the “indirect profits” that the Symphony generated from subscription sales because they used his work “The Tango” in their brochure.

Had “The Tango” been used “directly” in a product sold by the Symphony, on a direct merchandise for sale, like a t-shirt, Mackie could have recovered damages by establishing the Symphony’s “direct profits” from gross sales of those products. The defendants could then prove what portion of the gross sales were not traceable to the infringing work.

Since “The Tango” was used in a promotional brochure to sell subscriptions, Mackie had to establish a sufficient causal link between their use of “The Tango,” and the Symphony’s “indirect profits” in their subscription sales. However, there were so many reasons that an individual might subscribe that have nothing to do with Mackie’s work (the Symphony’s reputation, the musicians, the concert dates, the conductor, the symphonies being performed), that the court ultimately found that there was not a  sufficient causal link between the use of the image and the Symphony’s sales.

This case is an cautionary tale and an excellent example of the importance of registration.  Despite the fact that there was a clear copyright infringement, Mackie received only a $1,000 award, which is quite small when compared to the tens of thousands of dollars in legal fees that he likely expended in the lawsuit.

Whether you want to file a copyright registration or you’re involved in a dispute over a copyright, you will want to consult with a copyright attorney who can protect your rights.

Contact an attorney with Veritas Business Law, LLC for a free consultation.