Remedies for Copyright Infringement
A copyright infringer may be subject to both civil remedies and criminal sanctions. If the copyright holder wishes to seek monetary damages and profits, attorneys’ fees, and/or an injunction, the copyright holder In federal court, a copyright infringer may be subject to both civil remedies and criminal sanctions. If the copyright owner wishes to seek monetary damages and profits, attorneys’ fees, and/or an injunction, the copyright owner can initiate a lawsuit in federal court against the alleged infringer for civil copyright infringement. If an infringement is willful and “for purposes of commercial advantage or private financial gain,” or the infringement involves the willful reproduction or distribution of multiple copies with a value of more than $1,000 during a 180-day period, then the federal government may choose to bring a criminal copyright infringement case against the infringer.
The various remedies for copyright infringement in federal court are available to copyright owners and explained in detail below.
In federal court, a copyright owner may seek a preliminary or permanent injunction to prevent or restrain future or ongoing civil copyright infringement. Courts generally grant permanent injunctions where liability is established and there is a threat of continuing infringement.
- Impoundment and Destruction
Federal courts may order the impounding of infringing goods at any time an action is pending. As part of a final judgment, the court may also order the destruction or any other reasonable disposition of the infringing goods.
At any time before final judgment is rendered, a copyright owner may elect to recover actual damages and profits of the infringer or statutory damages (i.e., damages determined by the statute, here the Copyright Act). Actual damages may be awarded in the amount of the copyright owner’s losses plus any profits of the infringer attributable to the civil copyright infringement. Statutory damages in federal court may be awarded in an amount between $200 and $150,000 per work infringed, with the former available only for “innocent infringers” and the latter available in cases of willful infringement. In federal court, statutory damages are generally only available to copyright owners who have registered their copyrights prior to infringement.
- Court Costs and Attorneys’ Fees
Federal courts have discretion to allow the recovery of full court costs by or against any party, including the awarding of reasonable attorneys’ fees to the prevailing party under certain circumstances. However, plaintiff copyright owners cannot be awarded attorneys’ fees unless they have timely registered their works with the U.S. Copyright Office.
- Criminal Penalties
If an infringement is willful and “for purposes of commercial advantage or private financial gain,” or the infringement involves the willing reproduction or distribution of multiple copies with a value of more than $1,000 during a 180-day period, then the alleged infringer may be indicted by a federal grand jury and tried for criminal copyright infringement. If found guilty, the infringer may be imprisoned for up to five years and fined up to $250,000.
Copyright Claims Board (CCB)
The Copyright Claims Board (CCB) is a voluntary alternative to federal court for resolving certain types of small copyright disputes. Criminal penalties are not available at the CCB, and only a limited set of civil remedies for copyright infringement may be awarded.
The CCB can award monetary damages to the prevailing party. However, the total monetary damages awarded by the CCB cannot exceed $30,000 in one case. For infringement claims, the copyright owner may choose between (i) actual damages and profits or (ii) statutory damages at any time before the CCB makes a final determination in the case. A party can also choose not to pursue damages at all.
Actual damages may be awarded in the amount of the copyright owner’s losses plus any profits of the infringer attributable to the infringement (but total damages awarded in any one case may not exceed $30,000).
Statutory damages at the CCB may be awarded in an amount between $200 and $15,000 per work infringed, with the former available only for “innocent infringers.” Unlike in federal court—where a work generally must be registered before the infringement in order to allow for an award of statutory damages—at the CCB a limited amount of statutory damages are available to copyright owners even if the work is not “timely” registered with the Copyright Office (up to $7,500 per copyrighted work infringed and a total of $15,000 for all works infringed that were not “timely registered”).
The CCB cannot issue injunctions. However, if the parties reach an agreement where one party agrees to cease a particular conduct, the CCB can include a requirement in its determination that the party abide by the agreement to cease the conduct.
That agreement may also have an impact on the amount of monetary damages awarded in an infringement case—because the CASE Act allows the CCB to factor in whether the infringing party has agreed to cease or mitigate the infringing activity when determining the amount of damages that the CCB will award. While technically, incorporation of the parties’ agreement into the CCB determination is not injunctive relief, it effectively serves the same function.
- Court Costs and Attorneys’ Fees
As a general rule, at the CCB, parties must pay their own attorneys’ fees and court costs. However, there are exceptions to this rule when a claim is dismissed for failure to prosecute (i.e., the party that initiated the case stops participating), or where the CCB has determined that a party has pursued a claim, counterclaim, or defense for a harassing or other improper purpose, or without a reasonable basis in law or fact. Where the CCB determines that the party has engaged in such bad faith conduct, the CCB will typically award reasonable costs and attorneys’ fees to any adversely affected party in an amount of not more than $5,000.
There are two exceptions to this: (1) where an adversely affected party is not represented by an attorney in the proceeding, the award to that party will be for costs only, in an amount of not more than $2,500; and (2) in extraordinary circumstances, such as where a party has demonstrated a pattern or practice of bad faith conduct, the CCB may, in the interests of justice, award costs and attorneys’ fees in excess of $5,000.
To learn more about the Copyright Claims Board, visit our Copyright Claims Board FAQs. Join the Copyright Alliance to continue to stay informed about the remedies of copyright infringement —membership is free.
Last updated: 05/2022