What are copyright counterfeiting damages?

Copyright Counterfeiting Damages under Copyright Act

Copyright counterfeiting may often be overlooked as another form of copyright infringement. In many instances, the original good that was counterfeited will have a copyright and therefore the unauthorized act of copying a copyrighted work constitutes an act of infringement. Because the defendant, in cases of counterfeit, is intentionally copying the plaintiff’s goods, courts have considered such counterfeiting to be acts of willful infringement. Counterfeiting might even lead a court to award the maximum amount of statutory damages authorized under the Copyright Act. See e.g., Montblanc-Simplo GmbH v. Ilnitskiy, 2018 U.S. Dist. LEXIS 25146 at *21-22 (E.D. Va. 2018). 

See our post Copyright Infringement Damages for a broader discussion of damages available where copyright infringement has occurred.

Willful Infringement and Enhanced Damages for Copyright Counterfeiting

The award for willful infringement under the Copyright Act consist of the following: “in a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000.” 17 U.S.C. § 504 (emphasis added). 

For example, the Southern District of New York found willful infringement where a company made counterfeit records and tapes of the plaintiff’s sound recordings and awarded the plaintiff the maximum statutory damages. RSO Records, Inc. v. Peri, 596 F. Supp. 849, 862 (S.D.N.Y. 1984). “The probable size of the damages combined with the large-scale and willful infringing activity of defendants thus makes appropriate an award of maximum statutory damages….” Id.   

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