Copyright Law: Remedies

A successful plaintiff in a copyright infringement action is entitled to one of two basic kinds of monetary remedies: (1) actual damages or (2) statutory damages. The plaintiff can elect to pursue either kind of monetary damages.

Actual Damages: Pursuing actual damages will allow a successful plaintiff to recover two separate kinds of  income. Plaintiffs are entitled to recover any market value in the original work that was lost as the result of the infringement. Additionally, plaintiffs can recover any profits made by the infringer as a result of the infringement insofar as those profits are not accounted for in the lost market value of the original work.

Statutory Damages: If a plaintiff believes that they will have great difficulty demonstrating the proper amount for actual damages, or if the amount of actual damages is low, they may instead elect to pursue statutory damages. § 504(c) of the Copyright Act states that plaintiffs are entitled to an amount between $750 and $30,000 for each act of infringement. The specific amount to be recovered for each case will be determined by the court's discretion. If the plaintiff demonstrates that an act of infringement was willful, the court's discretionary ceiling will rise from $30,000 per infringement to $150,000 per infringement.

In 2006, the US Supreme Court heard a case (eBay v. Mercexchange) involving a commonly-used presumption of the appropriateness of injunctive relief in patent cases. Prior to the eBay decision, many courts presumed that injunctive relief was an appropriate remedy in both patent cases and copyright cases. The eBay decision repudiated this presumption and stated that any party seeking a permanent injunction as a remedy must demonstrate: (1) that it has suffered an irreparable injury; (2) that monetary damages are insufficient to compensate for the injury; (3) that an equitable remedy is warranted considering the balance of hardships between the plaintiff and defendant; and (4) that the public interest would not be disserved by a permanent injunction.

Though the eBay case did not involve claims of copyright infringement, many of the circuit courts have adopted its requirements equally for copyright cases. Thus, for most copyright cases after 2006, there is no presumption that injunctive relief is appropriate, and plaintiffs seeking injunctive relief are required to demonstrate each of the four requirements listed above before a court can grant any such injunctive relief.

Practical Law Guide - Copyright Litigation: Injunctive Relief: Students with access to Westlaw can learn more about injunctive relief in the copyright context by viewing this guide.

In addition to a private right of action for infringement, the Copyright Act includes a criminal component. The crime of copyright infringement is defined in § 506 of the Copyright Act. The possible punishments upon conviction for criminal infringement are enumerated in 18 U.S.C. § 2319.

The basic elements of criminal infringement are as follows:

(1) defendant must have engaged in conduct that infringed another's copyrights;

(2) the infringing conduct must have been committed willfully (i.e. the defendant must have known that his or her conduct was unlawful);

(3) the infringing conduct must have been committed for the purpose of commercial advantage or financial gain; and

(4) the total retail value of the infringement must have exceeded $1,000 OR the infringing conduct must have knowingly made a work intended for commercial distribution available to the public for free via a computer network.