How are actual damages calculated in a copyright case?

federalcourtreportsCC0A successful plaintiff in a copyright action can recover their own actual damages and any profits of the infringer, but there is no double recovery. The plaintiff or the defendant has the right to have a jury decide the issue of damages.

Actual damages refers to money lost by the plaintiff. This may include lost profits, meaning the profits the plaintiff would have earned if the defendant had not infringed the copyright.  Under another, more controversial theory of damages, the plaintiff may be able to recover the amount they would have earned from a license, if the use of the photograph or other work had been properly licensed rather than infringed. Sometimes courts include, under the category of actual damages, indirect harm to the plaintiff such as the loss of revenue from potential other work the plaintiff missed out on because the defendant did not give the plaintiff proper credit for their work, or loss of goodwill because potential customers were led to believe that the plaintiff’s work is not unique.

Profits refers to money made by the defendant from the infringement. Double recovery is not permitted, so any profits made by the defendant that came from sales diverted from the plaintiff, are already counted under actual damages and may not be counted again under profits. However, when the defendant has a larger or more successful business than the plaintiff, measuring defendant’s profits can still result in a significant amount not accounted for by plaintiff’s actual damages. [1]

  1. 17 U.S.C. § 504.
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