Experts in Intellectual Property Damages

Copyrights

A copyright is a legal protection provided to authors of original works of authorship, including literary, dramatic, musical, artistic, and other intellectual works. Copyright law has evolved during the past few decades, making the date of authorship an important indicator of the rights granted with a copyright. Federal registration can also enhance the legal protection granted. Generally, a copyright gives the owner the exclusive right to: (1) reproduce the work in copies or phonorecords; (2) to prepare derivative works based on the work; (3) to distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) to perform the work publicly; (5) to display the work publicly; and (6) for sound recordings, to perform the work publicly through digital audio transmissions.¹

Rights associated with a copyright are limited in certain instances. One limitation is the “fair use” exemption; which allows limited use of copyrighted works without permission for commentary, criticism, new reporting, research, teaching, library archiving, and scholarship.

Copyright Damages

Title 17 of the U.S. Code, commonly referred to as the Copyright Statute, includes remedies for copyright infringement including injunctive relief, impoundment, and monetary damages.²

Title 17 of the United States Code, Section 504 reads:

“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. The infringer is required to present prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.” [Emphasis Added]

Copyright owners can recover actual damages suffered 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.³ Statutory damages may be awarded in lieu of actual damages.⁴ Attorney’s fees may also be awarded.

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.⁵

Copyright infringement can be “direct” or “indirect.” Direct infringement involves the sale of the copyrighted work. Indirect infringement occurs when the infringer uses the copyrighted work to sell other products.

Notes

• United States Copyright Office, available on the Web at:
  copyright.gov/circs/circa.pdf.
• U.S. Code, Title 17
• U.S. Code, Title 17, §504(b)
• U.S. Code, Title 17, §504(c)
• U.S. Code, Title 17, §504(b)