Generally speaking, when your photograph, music or art is stolen, the Copyright Act of 1976 provides four categories by which the infringer may have to pay: 1) actual damages; 2) infringer’s profits; 3) statutory damages; and 4) attorney’s fees. Although it is not possible to get paid in all four categories in any one lawsuit, which categories you can elect depends upon whether or not you have registered your work.
The government wants creators to register their work with the United States Copyright Office. In order to incentivize creators to register their work, the government authored 17 U.S.C. §412. A creator, under 17 U.S.C. §412, is only allowed to elect statutory damages and attorney’s fees if they have timely registered their work. It is important to be able to elect statutory damages and attorney’s fees as for most creators, electing these will get the creator the most lucrative outcome.
Most of the time, however, photographers, musicians, and artists fail to register their work with the United States Copyright Office. After all, most creators are most focused on bringing their art to life, than following regulatory procedures. Fortunately, even if you fail to timely register your work with the United States Copyright Office, you still have options.
Under 17 U.S.C. §504(a)(1), a creator is allowed to seek “…[the creator’s] actual damages, and any additional profits of the infringer…”. This means that if you fail to register your work you still can choose from, or at times both, your actual damages and the infringer’s profits.
Actual Damages
The law defines “actual damages” as “the extent to which the market value of a copyrighted work has been injured or destroyed by an infringement.” (Mackie v. Rieser, 296 F.3d 909, 914 (9th Cir. 2002) quoting Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F. 2d 505, 512 (9th Cir. 1985). With “market value” being “what a willing buyer would have been reasonably required to pay to a willing seller for [the] work.” (Id., quoting Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 2d 1157, 1174 (9th Cir. 1977). For example, if a certain photographer charges one-thousand dollars for their photograph, and someone copies it, then the court would likely rule that the infringer must pay the creator one-thousand dollars.
Infringer’s Profits
In addition to obtaining actual damages, under 17 U.S.C. 504(b), a creator is also entitled to “…any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages…”. This means that a creator is entitled to not only be paid based upon their actual damages but in addition to that, to be paid based upon the infringer’s profits. “Profits realized by the infringer” fall into two groups: 1) direct profits, and 2) indirect profits.
Direct profits are “…those that are generated by selling an infringing product…” (Mackie v. Rieser, 296 F.3d 909, 914 (9th Cir. 2002)). For example, if someone copied your photograph and put it in a frame and sold it for home décor, the direct profits would be all the profits derived from selling those framed photographs.
Indirect profits involve “…revenue that has a more attenuated nexus to the infringement.” (Mackie v. Rieser, 296 F.3d 909, 914 (9th Cir. 2002)). Indirect profits tend to be harder to define and are better understood on a case by case basis. One example would be if someone copied your song and placed it in a television commercial, the indirect profits would be a portion of the total profit which could be traced to the use of the song in the commercial.
As you are now aware from the above, although registering your work is preferable, if you have failed to register your work it should not stop you from bringing a lawsuit for copyright infringement as there are many options.
These blogposts shall not be constituted as legal advice and are for informational purposes only. Each and every case is different and requires an attorney to examine the specific case in question to arrive at an adequate legal conclusion. In addition, these blogposts are not updated, or edited, after the date of their initial post, and as such, the information contained within them may be outdated. Finally, the above blogpost discusses the law as interpreted within the jurisdiction of the 9th Circuit. Various federal circuits may have differing interpretations of the law. Consult with your own personal attorney for more information on the subject matters.