When Are Potential Statutory Damages available?
- Situation #1 – Our company filed the Copyright Application within seven days after the work was finished. The Copyright Registration was granted eleven months after filing the Copyright Application. One year after filing of the Application, we notified a potential infringer of alleged infringement and our intention to seek statutory damages (among other things) unless the infringement ceased immediately. If infringement is proved, statutory damages available to Copyright owner.
- Situation #2 – The family business published the finished work in September. We filed the Copyright Application in November. In June of the next year, the Copyright Office granted our registration. In July, our sales people reported that our competitor had copied our published work. If infringement is proved, statutory damages available to Copyright owner.
- Situation #3 – Jimmy the artist published his finished work in January. In April, Jimmy filed the Copyright Application with the Copyright Office. In August, Jimmy learned that his brother, Billy, was using Jimmy’s finished work without permission and that Billy had been paid thousands of dollars by Harry’s Place to use the finished work. Harry believed the work to be Billy’s work. The Copyright Office granted Jimmy’s Copyright Registration in December. Harry Place’s commenced publishing Jimmy’s finished work one year after the work was completed. Statutory damages are not available against Billy. If infringement is proved, statutory damages are available to Jimmy for Harry’s Place’s infringement.
What the Law Says About Statutory Infringement & Damages
The Basic Parameters for Copyright Infringement Statutory Damages are set forth in 17 United States Code (U.S.C.) 504
17 U.S.C. 504, in part, reads:
(a) In General.—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, as provided by subsection (b); or
(2) statutory damages, as provided by subsection (c).
(c) Statutory Damages.—
(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.
(2) 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. In 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. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107…
US Supreme Court Ruling: When is Copyright Registration Made?
In the Supreme Court case of Fourth Estate Public Benefit Corp. v Wall-Street.Com, LLC, (2019) the Supreme Court held “…registration . . . has been made” within the meaning of 17 U. S. C. §411(a) not when an application for registration is filed, but when the Registrar has registered a copyright after examining a properly filed application.”
As a practical matter, it may take nine or more months subsequent to the filing of an Application for Copyright Registration before the Registration is granted by the Copyright Office.
Limitations for Statutory Damages
As a general rule, 15 U.S.C. 412 limits the Copyright owner’s statutory damages remedies to an owner having an effective date of registration not later than three months subsequent to first publication or one month after the owner learned of the infringement.
Still Have Questions About Statutory Infringement and/or Damages?
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