What Are Statutory Damages and Why Do They Matter?
Question: I heard that I should register my works with the Copyright Office because I will get “statutory damages.” What are statutory damages and why do they matter? How do I become eligible to receive them?
What are statutory damages and why do they matter?
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).
Statutory damages are important because the alternative type of damage award is “actual damages,” which must be proven in court and can be very difficult to establish. Actual damages include profit that the copyright owner lost as a result of the infringement (for example, a license fee) as well as any additional profits the infringer received as a result of the infringement. Actual damages are often difficult to prove, so statutory damages are beneficial to copyright owners because they remove the difficulty of providing evidence of actual damages. Copyright owners that meet the requirements for eligibility can elect to receive statutory damages in an infringement suit at any time before the final judgement is made.
What are the requirements to be eligible to receive statutory damages?
Copyright owners are eligible for statutory damages when they register their work with the U.S. Copyright Office either (1) within three months of publication of the work, or (2) before the infringement starts. For example:
Example 1: An author published her work in January 2018 and registered her work in May 2018. If someone infringed the work in March 2018 and she wants to sue them, will she be eligible to receive statutory damages?
Answer: No, she did not register the work within three months of publication, and the infringement began before the registration.
Example 2: A songwriter published his work in January 2018 and registered his work in March 2018. If someone infringed the work in February and he wants to sue them, will he be eligible to receive statutory damages?
Answer: Yes. Even though the infringement started before the registration, because he registered within three months of publication he is eligible for statutory damages.
Example 3: A photographer published her work in January 2018 and registered her work in October 2018. If someone infringed the work in December 2018 and she wants to sue them, will she be eligible to receive statutory damages?
Answer: Yes. Even though she registered well after the three-month period, she registered before the infringement started, so she is eligible for statutory damages.