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You infringed my copyright! You owe me $150,000! Um . . . Not so fast.

By May 24, 2012 Posted in Copyright

Because my firm will sometimes handle copyright infringement cases on a contingency fee basis, I often get phone calls that go something like this.

Caller: I would like to sue someone for copyright infringement.

Me: Okay.  What did they do?

Caller: They took a picture of mine and put it on their website.

Me: Are you a professional photographer?

Caller: No.  But I registered the photograph with the Copyright Office. So now they owe me $150,000.  Right? . . . Right?

This seems to be where the confusion comes in.  People think that if someone infringes their copyright, they are automatically owed $150,000.  But what the Copyright Act actually says is:

In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. 17 U.S.C. §504(c)(2).

Notice the underlined words.  The statute does not say that for willful infringement, the court must award at least $150,000.  The statute says that $150,000 is the most the court can award for statutory damages, but it’s entirely discretionary.  The court can even award damages as low as $200 if it finds the infringement to be innocent.

But many people assume that I will jump at the chance to represent them on a contingency fee basis, because I will certainly be able to get a jury to award damages of $150,000 The problem is that they are not looking at the case realistically.  Reader, ask yourself this question. If you were on a jury and had to decide statutory damages on a case where the sole infringement was that a photograph was put up on a website, are you going to give that photographer $150,000.  Probably not.  Most likely, you will ask yourself how much damages the photographer actually incurred and base your award on that number.

Keep in mind, when Congress wrote the laws regarding statutory damages, they were probably thinking of things like video bootleggers, who could sell tens of thousands of dollars of illegal product, but with no record keeping of these sales, making actual damages impossible to determine.  They were almost certainly not considering the kind of (relatively) small infringements that happen daily on the web.  I’m not excusing this behavior.  Nor do I think these infringements should never draw a lawsuit (although sometimes they should not).  But just don’t assume that every infringement is automatically worth $150,000.

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