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1. Copyright infringement – damages a plaintiff can receive if they win. A thread. 20 tweets.
2. You might have heard that copyright infringement can yield a $150,000 result. Is that right? Well, possibly. But it requires explanation.
3. A party who wins on a copyright infringement can elect either 1) actual damages – and – the infringer’s profits; or 2) statutory damages. 17 U.S.C. 504.
https://www.law.cornell.edu/uscode/text/17/504
https://www.law.cornell.edu/uscode/text/17/504
4. Choice 1: Actual damages. That’s the damages you lost because of the infringement. It could be, for instance, what you would have made from a proper license of your work.
5. Actual damages might not be much to you if you win. But if you choose this, you are also entitled to defendants’ profits that are – this is key – attribute to the infringement.
6. It might be hard be to show exactly how much of defendants’ profits is attributed to the infringement. How do you account for album sales when one song infringes?
7. Here’s how the Copyright Act helps. The winning plaintiff has to show proof of the infringer’s gross revenue from the infringing items. Then it’s the infringer’s burden to prove deducted expenses, or show that the revenue wasn’t attributable to the infringement.
8. Choice 2. Statutory damages. You can elect statutory damages instead – if your copyright was registered before the infringement (I’ll get back to that).
9. That’s where the $150,000 figure comes in. The maximum damages are $150,000 per copyright infringed. That’s only if the copyright infringement was willful. If it’s not willful, the maximum is $30,000 per copyright infringement. Minimum is $750.
10. That figure – whether it’s $750 or any amount up to $150,000 – is per “copyright infringed”, not per copyright infringement. So if someone made 10,000 pirated copies of one of your books, your statutory damages are still a single amount for the one copyright.
11. For instance, when a court* found that a “Harry Potter Lexicon” infringed the Harry Potter series, the court awarded the minimum statutory damages ($750) for each Harry Potter book infringed, for a total of $6,750.
12. * Usually a jury will determine the amount of damages. For the Harry Potter Lexicon trial, the parties chose a “bench trial.” That’s when a judge is the fact-finder, essentially taking the place of a jury.
13. Often, a plaintiff will determine they can get more out of actual damage and defendants’ profits than they could from statutory damages. Recall the Blurred Lines verdict, which was more than $3 million. Maximum statutory damages would have been $150,000.
14. Getting back to statutory damages only being available when the copyright was registered before the infringement. Read this next part carefully.
15. The copyright must be registered before you file the infringement lawsuit. But the registration date that determines if you’re eligible for statutory damages is different than the registration date required for you to file the lawsuit.
16. To be entitled to statutory damages, and also attorneys’ fees, the “effective registration date” must be before the infringement. The “effective” registration date is retroactive – it’s when you submitted all the proper materials to the Copyright Office.
17. But the copyright must be registered with the Copyright Office before you file an infringement lawsuit. That could be 6-12 months after you submit the materials, if you don’t pay to expedite it.
18. When it’s registered, the “effective registration date” is the date you submitted the materials.
19. I wrote more about that distinction in this thread: https://twitter.com/MarkJKings/status/1209601465804681217
20. And that, my friends, is the very basics of copyright damages under 17 U.S.C. 504. As always, assume asterisks everywhere.
