What are Copyright Infringement Damages? Types Explained

What are Copyright Infringement Damages?

Copyright infringement damages are the monetary rewards available to copyright owners whose protected work is used in an unauthorized manner. These damages include (1) actual damages and any additional profits of the infringer, or (2) statutory damages. Additional damages may be available in cases of willful infringement, and, where a work is registered, attorneys’ fees may be included.

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A copyright is a form of intellectual property that gives the creator of an original work the exclusive right to copy, distribute, adapt, display, and perform a creative work. Copyrights are infringed when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.

When such infringement occurs, certain monetary damages are available to the copyright owner as described in the 17 U.S.C. § 504, the “Damages and Profits” section of the Copyright Act, which states that a copyright infringer is liable for either the copyright owner’s actual damages and any additional profits of the infringer, or statutory damages.

Actual Damages and Additional Profits as Copyright Damages

Actual damages are losses suffered by the copyright owner because of the infringement. These typically include lost sales, lost profits, lost revenue from licensing, or any other significant monetary loss resulting from the infringement.

Any additional profits of the infringer (that were not included in the computation of actual damages) will also be included in the infringement damages. For purposes of establishing these profits, the Copyright Act dictates that “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.” 17 U.S.C.A. § 504 (the Copyright Act).

Statutory Damages Alternative to Actual Copyright Damages

The Act allows the Copyright owner to elect damages provided by the statute—statutory damages—rather than the typical damages and profits scheme. Statutory damages are awarded “per work” infringed, meaning if 3 songs are infringed, the copyright owner would be able to recover a statutory damage per song. Per each work infringed, a minimum of $750 and a maximum of $30,000 are available. Thus, continuing our song example, the copyright holder would be able to recover a total statutory damage award minimum of $2,250 or a maximum award of $90,000. Note, statutory damages are generally unavailable for infringement of unregistered works, except for infringement of a published work registered within three months of its first publication.

Willful Copyright Infringement

In some cases, a copyright holder can recover more damages where the infringement was willful. “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.

In turn, with a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.

Attorneys’ Fees & Costs

A court may award court costs to the prevailing party, which may include reasonable attorneys’ fees. See 17 U.S.C. § 505. However, attorneys’ fees are generally unavailable for infringement of unregistered works, except for infringement of a published work registered within three months of its first publication. See 17 U.S.C. § 412.

A copyright owner seeking to protect its unique work should be knowledgeable about the potential damages recoverable following any infringement and seek qualified counsel to aid in the process.

For more information on copyrights and intellectual property in general, see our copyright services and intellectual property practice pages.

Klemchuk PLLC is a leading IP law firm based in Dallas, Texas, focusing on litigation, anti-counterfeiting, trademarks, patents, and business law. Our experienced attorneys assist clients in safeguarding innovation and expanding market share through strategic investments in intellectual property.

This article is provided for informational purposes only and does not constitute legal advice. For guidance on specific legal matters under federal, state, or local laws, please consult with our IP Lawyers.

What are Copyright Infringement Damages? Types Explained