The Infringer’s Profits
A copyright owner can also recover the infringer’s profits in certain circumstances. These damages can include both direct profits and indirect profits. The determination of damages requires that the copyright owner show a nexus between the infringement and profit generated from the infringement.
In determining profits, the copyright owner must prove the amount of revenue that has been obtained by the infringer. The infringer has the burden of proving any costs that must be deducted from the revenue. The profit is the difference between the two figures.
The infringer can also argue that the profits are not attributable to the copyrighted work in an effort to reduce the damage award or to eliminate it entirely.
Finally, there can be no “double counting” so that an award of infringer’s profits cannot include damages that were taken into account in computing actual damages.
Statutory damages are available to copyright owners in certain circumstances, namely when the copyright is registered prior to infringement or when infringement occurs within three months of publication of the work. Statutory damages can range from $750.00 to $30,000.00 per work. Statutory damages can be increased to up to $150,000.00 per work for willful infringement. See 17 U.S.C. § 504.
Statutory damages may be reduced to as little as $200.00 in cases of innocent infringement. See 17 U.S.C. § 504(c)(2).
Part 1 of this blog can be found here.