In Episode 35 of the “Law & Business” Podcast, Anthony talks (all by himself) about why a person or business must register a copyright in a work that qualifies under copyright law.
Yes, the Supreme Court recently ruled that a copyright infringement lawsuit can only be instituted after registering a copyright. That blog post was already written.
However, Anthony is all by himself in Episode 35 of the “Law & Business” Podcast in order to discuss all the reasons why one needs to file a copyright and have that registration.
- The requirement to have the registration before any lawsuit is started.
- Statutory damages.
Ease of cataloging, licensing and assigning. This is a thought that not many people have. If a work is registered, then there is a registration number. That number is a simple reference in licensing, use, sale, and transfer agreements.
Damages. Statutory damages require the registration.
Only a person or business who has registered a work with the U.S. Copyright Office before the infringement (or within three months of publication) may receive statutory damages.
Statutory damages are damages that can be awarded by a judge or jury to a copyright owner in a copyright infringement suit. They are called “statutory damages” because the range of damages is established by the statute, specifically section 504 of the Copyright Act. Statutory damages are usually between $750 and $30,000 per work, as determined by the court. However, the damage amount can be increased up to $150,000 per work if the infringement is found to be willful (intentional). If the infringement is “innocent,” meaning the infringer did not know they were violating copyright law, the damages can be reduced to a minimum of $200 per work (if the work did not contain a proper copyright notice).
Statutory damages are awarded “per work” infringed (i.e., each individual copyrightable work, like a single song, book, or photograph). This means that if five songs, or five photographs, are infringed, the copyright owner would be able to recover a statutory damage for each one, for a total of five awards. So statutory damages of at least $750 per work, for five works would yield a minimum (non-innocent) total award of $3,750 ($750 x 5 songs = $3,750) or a maximum (non-willful) award of $150,000 ($30,000 x 5 songs = $150,000).
Awards of Actual Damages in a Copyright Infringement Case.
Sometimes known as compensatory damages, “actual damages” consists of the dollar amount of any demonstrable loss the copyright owner suffered as a result of the infringing activity. This loss may be from lost sales, lost licensing revenue, or any other provable financial loss directly attributable to the infringement.
17 U.S.C. § 504(b) provides: “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, 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.”
Usually, plaintiffs in infringement actions would offer expert testimony to establish their actual financial damages to the court.
Awards of Infringer’s Profits.
This second form of damages consists of any money made by the infringer as a result of the infringement. These damages are awarded only if they exceed the amount of profits lost by the copyright owner (actual damages) as a result of the infringement.