Peretz Chesal & Herrmann, P.L.: Common Remedies for Copyright Infringement

Copyright infringement lawsuits can give rise to significant damages and other remedies. Read on to learn more.

In the United States, regardless of state jurisdiction, those who own valid and enforceable copyrighted works are entitled to bring an action against the infringer for damages, and to obtain various supplemental remedies that help secure the copyright against further unauthorized use by the defendant (and others).  These remedies — both monetary and equitable in nature — are intended to compensate the copyright owner and put them in a financial and strategic position that closely approximates where they would have been had the infringement not occurred at all.

When litigating a copyright claim — as with any other intellectual property or civil claim for damages — much of the battle is fought over what constitutes a fair remedy for the violation at-issue.  If you succeed in proving that the defendant has violated your copyright, for example, but the court awards a small amount (i.e., $1,000) per copyright violation, then you may find that the damages are rather insubstantial and not proportional to the infringing conduct of the defendant.  As such, effective copyright litigation must take into account the range of available remedies and the maximum possible remedy that can be secured given the circumstances. 

Consider the following.

Monetary damages may be in two forms, actual damages (i.e., the lost profits that you would have obtained had the defendant not engaged in copyright infringement, as well as the profits earned by the infringing defendant), and statutory damages.

Statutory damages are a defined, set amount that apply to every independent instance of infringement.  Though it may initially seem like only a minor form of compensation, in reality, the damages can be quite significant when all separate instances of infringement are tallied together — if the court awards $2,500 per instance of infringement, and the defendant distributed 1,000 unauthorized copies of your copyrighted film, for example, then you would be entitled to $2.5 million in monetary relief pursuant to the statutory damages calculation.

In a copyright infringement lawsuit, both preliminary and permanent injunctive relief may be available.  Injunctive relief is a court order that explicitly prevents the defendant from engaging in further, specified activities — typically the infringing conduct at-issue.  Preliminary injunctions may be granted prior to a final court judgment in cases where there is a risk of significant damages and where the plaintiff (copyright owner) is highly likely to succeed in proving infringement.

For example, suppose that you have produced a copyrighted film.  You sue the defendant for creating unauthorized copies of the film and distributing it without consent.  The court is likely to award both damages and injunctive relief ordering the defendant to cease all further copying and distribution of the film.

If the copyright infringement resulted in the creation or use of particular, infringing items (i.e., in a music infringement case, digital files involving unauthorized copying of the protected musical work) then the court may identify, gather, and ultimately order all infringing items destroyed so that no further infringement may be perpetrated using such items.  This includes items from which the unauthorized copies can be remade (i.e., a master file) as well as the reproduced copies themselves.

To some degree, this remedy is a safeguard above-and-beyond that of permanent injunctive relief — by destroying the infringing items, you can be assured that some other individual or entity will not obtain them and (subsequently) accidentally or willfully infringe upon your copyright.

If you succeed in proving infringement, then the court — in a discretionary manner — may choose to grant you an award of reasonable attorney’s fees and costs of litigation.  This can be quite significant, depending on the length and complexity of the copyright infringement litigation at issue.

If you have had your valid copyright infringed by another individual or entity, then you may be entitled to impose an injunction against further unauthorized use of such copyright, and to recover significant damages, among other remedies.  Copyright litigation can be quite challenging, however — given that success is not merely defined by proving infringement, but also by the remedies thereby secured — so it’s important to consult with an experienced copyright attorney for further assistance.