Copyright Infringement Remedies
Guest post by Brandi Seppala, Law Clerk
Many content creators wonder what legal recourse is available for copyright infringement. Copyrights are governed by federal law under the Copyright Act of 1976. Copyrights protect original works of authorship fixed in a tangible medium of expression. To learn more about what Copyright is, check out our Copyright Basics post.
Understanding what remedies are available is important to grasp the full picture of a Copyright holder’s legal rights. There are certain remedies available for copyright infringement – some more common than others.
Take note, though! A copyright must be registered with the Copyright Office before the copyright holder can file any type of copyright infringement suit in court.
I. Injunctions On Copyright Infringement
An injunction is a court order requiring a person to take, or refrain from taking, a specific action. In the case of copyright infringement, injunctions are a popular form of relief, as the owner of a creative work alleging infringement typically wants to stop the accused infringer from further infringing conduct.
The law governing injunctions for copyright right infringement is:
“(a) Any court having jurisdiction of a civil action arising under this title may . . . grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.[...]”
Certain procedural requirements must be met in order for a court to order an injunction, and this will vary from case to case. For a permanent injunction - an injunction entered as the final judgment in the case - a party must demonstrate:
Irreparable injury;
Inadequate remedy at law;
Balance of hardships favors moving party; and
Public interest will not be harmed by injunction
A party may also seek a preliminary injunction, which occurs during litigation. The factors required for a preliminary injunction are the same as for permanent injunctions, but the moving party, in addition, must show likelihood of success on the merits of the case.
Whether or not an injunction will be granted is ultimately determined at the court’s discretion.
II. Damages Based on Infringement Profits or Jury Discretion
Damages are the monetary awards for successful plaintiffs in copyright infringement cases. Copyright damages are specified as:
“Except as otherwise provided by this title, an infringer of copyright is liable for either: (1) the copyright owner’s actual damages and any additional profits of the infringer… or (2) statutory damages.”
Therefore, a plaintiff in a copyright infringement suit that seeks to recover damages must choose between these two forms, as explained below.
A. Actual Damages (Based on Profits)
The law governing actual damages is:
“The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.”
With actual damages it is important to understand that the damage award will be apportioned based on the value of a defendant’s own contributions in an infringing work, according to the Supreme Court in Sheldon v. Metro-Goldwyn Pictures. This means that if a defendant contributed to the relative value of an infringing work, the damage award will be reduced accordingly.
In some cases, a plaintiff will still be able to recover 100% of actual damages. For instance, if a defendant is selling bootleg DVDs of the creative work, then a plaintiff will be able to recover all of the defendant’s profits because the defendant has not added anything of creative value to the work.
But in other cases, a plaintiff’s actual damage award will be reduced considerably. For instance, in Sheldon v. Metro-Goldwyn Pictures, the defendant created a movie based on the plaintiff’s play. The plaintiff attempted to collect 100% of the defendant’s profits. However, because the defendant showed they had independently contributed to the movie’s value through production, set design, actor choice, etc., the plaintiff’s damage award was accordingly reduced.
B. Statutory Damages (Based on Jury Discretion)
The other type of damage award available is statutory damages. Statutory damages differ from actual damages in that the amount available for recovery is enumerated in the Copyright Act statutory language, rather than being based on a calculation of actual harm to the plaintiff. Statutory damages may be preferable if it is particularly hard to show the degree of harm to a plaintiff.
A plaintiff must elect to pursue statutory damages over actual damages in a copyright suit. The plaintiff must also have registered their copyright before the infringement occurred in order to recover statutory damages. The law governing statutory damages states:
“The copyright owner may elect … to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action … in a sum of not less than $750 or more than $30,000 as the court considers just.”
“In a case where … the court finds that infringement was committed willfully, the court … may increase the award of statutory damages to a sum of not more than $150,000.”
So a statutory damage award can vary from $750 - $150,000 per infringing work. Although a statutory damage award may be higher in certain cases, it is important to keep in mind that the decision will be left up to a jury’s discretion, according to the Supreme Court in Feltner v. Columbia Pictures. This may actually result in lower damages.
How to Choose Between Actual Damages and Statutory Damages
When choosing what type of monetary damage award to pursue, a calculus of how much a plaintiff can recover from each type of damages is important to consider. Actual damages and the infringer’s profits may be a good choice if it is clear that the defendant stole a substantial portion of the plaintiff’s creative work and is thereby profiting from it. Statutory damages may be a good choice to pursue if it is difficult to prove how much the plaintiff has actually lost due to the alleged infringement.
III. Impoundment of Infringing Goods
In rarer cases, a plaintiff may seek, and a court may order, to have the infringing goods impounded. The law describes impoundment as:
“(1) At any time while an action under this title is pending, the court may order the impounding, on such terms as it may deem reasonable—
(A) of all copies or phonorecords claimed to have been made or used in violation of the exclusive right of the copyright owner;
(B) of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced; and
(C) of records documenting the manufacture, sale, or receipt of things involved in any such violation, provided that any records seized under this subparagraph shall be taken into the custody of the court.”
IV. Attorney Fee Awards
Lastly, attorney fee awards are described as:
“In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.”
The Supreme Court limited attorney fees available in copyright infringement suits in Rimini Street v. Oracle. The Court held that “full costs” as described in the statute are limited to six categories of litigation expenses:
Docketing fees;
Fees of clerk and marshal;
Fees for transcripts for use in the case;
Fees for witnesses;
Fees for copying and printing; and
Compensation of court appointed experts and interpreters, but not expert witnesses, e-discovery, or jury consultants retained by parties
The award of attorney’s fees in any given case will be up to the court’s discretion.
Getting Remedies for Copyright Infringement
What remedies are most applicable and desirable will vary from case to case, and it is important to consider what potential remedies are available to a plaintiff. For instance, a copyright must be registered before pursuing any type of copyright action in court. Furthermore, some remedies are available only if the work is registered before the infringement occurs, such as statutory damages.
Need help with copyright infringement?
If you need help understanding what legal remedies may be available for copyright infringement, please do not hesitate to reach out. We offer free 15-minute consultations. If we can help you, we’ll follow-up our recommendations for next steps and a cost estimate.