Who may be liable for such damages and
or Just One?
fees? Quite simply, everybody who participates
in or contributes to copyright infringement.
A factor complicating the three-year period
This may include not only the author of
has to do with situations in which repeated
the infringing work, but its initial publisher
acts of infringement occur over a long
and other publishers who reprint it, the
period of time—for example, where a book
publisher’s printer, and even the bookstores
containing infringing material is sold over
that sell the work. Such persons or entities
a period of years. Is each sale of the book a
are liable regardless of whether they actual y
separate infringing act, or are all the sales
know that the work they published,
together one infringing act? Courts disagree
printed, or sell infringes on another person’s
with each other on this question.
copyright. Moreover, corporate officers and
EXAMPLE: Acme Press begins to sell a
employees—such as editors employed by
book containing infringing material in
publishing companies—actively involved in
January 2010. Carl, the copyright owner,
the infringe ment may be held personal y liable
finds out about the infringement that
along with their employers. Any person who
same year but doesn’t do anything about
is sued for copyright infringement is cal ed
it. However, Acme continues to sell the
the defendant.
book through January 2018, when Carl
final y decides to file suit. Most courts
How Much Time You Have to
would permit Carl to obtain damages
Sue: Statute of Limitations
only for the losses he incurred due to the
sales that occurred within three years
There are strict time limits on when copy-
before he filed suit; however, some courts
right infringement suits may be filed. If you
would permit him to recover damages
fail to file in time, the infringer may be able
from January 2010. These courts would
to have your suit dismissed, even though
view all the sales of the infringing works
you have a strong case. In cases where you
as part of one “continuing wrong.” (See
have not discovered the infringement fairly
Taylor v. Meirick, 712 F.2d 1112 (7th Cir.
promptly after it has occurred, statute of
1983); Gaste v. Kaiserman, 669 F.Supp.
limitations questions can be tricky. It’s
583 (S.D. N.Y. 1987).)
wise to see a knowledgeable copyright
lawyer about the proper application of the
limitations period to your particular case.
302 | THE COPYRIGHT HANDBOOK
The general rule is that an infringement
• Actual damages and infringer’s
suit must be filed within three years after the
profits. The plaintiff is entitled to
date the copyright owner should reasonably
be compensated for the value of lost
have discovered the infringing act occurred.
sales (often difficult to prove) and for
In some cases, it can reasonably take a
other losses resulting directly from
copyright owner a long time to discover that
the infringement. The plaintiff is
the infringement took place, especially where
also entitled to collect the amount
the infringer attempted to conceal the act
of the defendant’s profits from the
of infringement. Moreover, the three-year
infringement over and above the
period starts to run anew every time there is
amount the plaintiff is awarded for his
a fresh infringement upon a work. For this
or her lost profits.
reason, if more than three years have passed
• Statutory damages. If the plaintiff’s
since the infringing work was first published,
work was timely registered and he or
don’t jump to the conclusion that your suit is
she so chooses, the plaintiff is entitled
barred by the statute of limitations.
to receive special statutory damages
provided in the copyright law (statute)
EXAMPLE: In 2013, several professors at
instead of actual damages and other
Esoterica College have Pinko’s Copyshop
photocopy portions of Bil ’s biography for
economic damages.
inclusion in class materials for courses on
• Attorneys’ fees. A copyright owner can
Middle Eastern history. Bill doesn’t discover
also get attorneys’ fees. Again, timely
this until 2018. If a court views the five-year
registration is required.
delay as reasonable, Bill will be able to bring
We’ll examine each remedy in turn.
an infringement suit against Pinko’s.
Again, this isn’t a complete description
of the legal procedures involved but is
designed to give you an overview of the
What You Can Get If
available remedies.
You Win: Remedies for
Copyright Infringement
Injunctive Relief
Once you’ve proven the elements of
An injunction is a court order telling some-
infringement, the next step is to establish
one to stop doing something. In a copyright
what remedies you’re entitled to. The
infringement action, the order usually is
potential remedies include:
simply for the defendant to stop the infring-
• Injunctive relief. This typically consists
ing activity. This is commonly a quick,
of a court order requiring the infringer effective remedy because, in many cases, it
to stop publishing the infringing work is possible to get positive action from the
and destroy all remaining copies.
CHAPTER 11 | COPYRIGHT INFRINGEMENT | 303
court long before the actual trial is held to
later. In fact, the parties often fashion
decide who wins.
a settlement based on the results of the
Indeed, it is possible to get a temporary
preliminary injunction hearing.
restraining order (TRO) almost immediately
EXAMPLE: In 1990, Nolo sued another
without notifying the defendant or holding
publisher for publishing and distributing a
a formal court hearing. A TRO may last ten
book infringing on Nolo’s title, Dog Law, by
days at most. A hearing must then be held on
Mary Randolph. Nolo and Randolph were
whether the judge should issue a preliminary
able to obtain a pre liminary injunction from
injunction. A preliminary injunction operates
a federal judge barring the publisher from
between the time it is issued and the final
distri buting any more copies of its book. A
judgment in the case. This interim court order
settlement was reached soon thereafter. The
is available when it appears likely to a federal
whole process took just three months from
judge, on the basis of written documentation
the date suit was filed.
and a relatively brief hearing at which the
lawyers for each side present their view of
If a settlement is not reached and a
the dispute, that (1) the plaintiff will most
full-scale trial occurs, the same issues as
likely win the suit when the trial is held, and those raised in the preliminary injunction (2) the plaintiff will suffer irreparable injury
hearing will be litigated in more detail.
if the preliminary injunction isn’t granted.
If the plaintiff again prevails, the
Ordinarily, irreparable injury is presumed
preliminary injunction will be converted
to exist where someone infringes upon a
into a permanent one, either including the
copyright owner’s exclusive rights. ( Apple
same terms and orders or different ones,
Computer, Inc. v. Franklin Computer Corp.,
depending on what the plaintiff proves at
714 F.2d 1240 (3d Cir. 1983).)
trial. If the plaintiff loses, the preliminary
If the judge grants the injunction, the
injunction (if one was granted) will be
plaintiff must post a bond in an amount
dissolved and the defendant can go back
determined by the judge. If the injunction
to doing what it was doing before, plus be
is later found to have been wrongfully
compensated for the consequences of the
granted, the defendant can collect from
lawsuit out of the bond.
the bond the damages and costs he or she
incurred due to the injunction.
Damages
Once a preliminary injunction is granted, If you win a copyright infringement suit,
it remains in effect pending a further
you usual y have the right to col ect money
determination of whether infringement
(cal ed damages) from the infringer.
occurred at the formal trial. In theory, a
As mentioned, if your work was timely
trial will probably be held one or two years
registered with the Copyright Office, you
304 | THE COPYRIGHT HANDBOOK
will be entitled to choose between collecting infringer’s gross revenue from the infringing actual damages and special statutory damages. work. The defendant’s business records
would usually be presented for this purpose.
Actual damages and infringer’s profits
The defendant must then prove what its
Actual damages are the lost profits or
actual net profit from the infringement
other losses sustained as a result of the
was—that is, the defendant must produce
copyright infringement. In other words,
records or witnesses to show the amount
actual damages are the amount of money
of expenses deductible from the infringing
that the plaintiff would have made but
work’s gross revenues (such as printing and
for the infringement. This may include
distribution costs) and the amount of profit,
compensation for injury to the plaintiff’s
if any, attributable to the noninfringing
reputation due to the infringement and for
material in the defendant’s work (often
lost business opportunities (often difficult to difficult to prove).
prove)—for example, a lost opportunity to
sign a publishing contract to write a sequel
Statutory damages
to a novel because an infringing novel
Statutory damages are set by the copyright
hurt its sales. To obtain actual damages,
law and require no proof of how much
the plaintiff must prove in court that the
the loss was in monetary terms. However,
alleged losses actually occurred. Business
as discussed in Chapter 3, “Copyright
records and witnesses (often including the
Registration,” statutory damages are available
plaintiff him- or herself) must be presented only if the work was timely registered—that to substantiate the plaintiff’s actual losses.
is, before the infringement began or within
As stated above, the plaintiff is also
three months of publication. Statutory
entitled to recover the amount of the
damages are awarded at the discretion of the
defendant’s profits from the infringement
judge or jury and don’t depend on having
to the extent they exceed the plaintiff’s
to prove a loss in any specific amount due
recovery for lost profits.
to the infringement. Statutory damages fall
within the following range:
EXAMPLE: The plaintiff is awarded $10,000
• Absent a finding that the infringer
for lost sales due to the defendant’s infringe-
ment. The defendant earned $15,000 in
acted either willfully or innocently,
profits from the infringement. The plaintiff is
between $750 and $30,000 for all the
entitled to $5,000 of the defendant’s profits.
infringements by a single infringer of
a single work, no matter how many
To establish the defendant’s profits,
infringing acts there were. If multiple
the plaintiff is required only to prove the
separate and independent works were
CHAPTER 11 | COPYRIGHT INFRINGEMENT | 305
infringed, statutory damages may be
Destroying the Infringing Works
awarded for each work.
• If the court finds that the infringer
Another civil remedy for copyright infringe-
acted willfully—that is, knew he or
ment consists of an impound and destroy
she had no legal right to the material,
order from the court. This tells the sheriff
but took it anyway—it may increase
or marshal to go to the infringer’s place
the amount of statutory damages up to of business (or wherever the infringing
$150,000.
material is located) and impound any
• But if the court finds that the infringer infringing works. This can happen at any
acted innocently—that is, used the
time after the suit has been filed. If the
copyrighted material sincerely believing plaintiff wins, the court may order the
he or she had the right to do so—the
sheriff to destroy the infringing material.
judge has discretion to award as little as
$200. However, if the work to which
Attorneys’ Fees and Costs
the infringer had access contained a
If your suit is successful and you timely
valid copyright notice, the infringer
registered your copyright, the court may also
may not claim to have acted innocently. order the defendant to pay your attorneys’
As discussed in Chapter 2, “Copyright
fees and other costs of going to court, such
Notice,” this is why it is always a good
as filing fees. However, this is not required.
idea to include a valid copyright notice
It’s up to the judge to decide whether to
on your work (even though a notice is
make such an award and how much i
t should
not legal y required for works published be (the amount must be reasonable). The
after March 1, 1989).
criteria some courts use to decide whether
Because the actual damages (the owner’s to award attorneys’ fees include whether the
lost profits and other provable losses)
defendant acted in bad faith or unreasonably
caused by an infringement are often small,
or was otherwise blameworthy. Many courts
statutory damages may far exceed actual
will be especially likely to award fees to a
damages where the infringer acted willfully. plaintiff whose actions helped to advance
A plaintiff who is eligible for both actual
the copyright law or defend or establish
and statutory damages may choose which
important legal principles.
kind to receive at any time, up to and
The cost of bringing an infringement suit
during the trial. Your decision will depend
can be very high, easily tens of thousands of
on the facts of your particular case and
dol ars. If for no other reason than to have
should, of course, be made in conjunction
the opportunity of recovering your attorneys’
with your attorney.
fees should you have to bring an infringement
306 | THE COPYRIGHT HANDBOOK
suit, you should always timely register your
On the other hand, if you receive a letter
work with the Copyright Office.
from an author or author’s attorney alleging
If the plaintiff loses the suit, the court has a substantial claim—for example, that a
discretion to award the defendant all or part
book you’re publishing to great success is
of his or her attorneys’ fees. In the past, many an unauthorized derivative work and its sale courts would award such fees to a defendant should be halted immediately—it’s probably
only if they found that the plaintiff’s suit was time to find a copyright lawyer. If, even frivolous or brought in bad faith. But these
worse, you are served with a complaint (a
courts would not require this in making fees document initiating a lawsuit), you must
awards to plaintiffs. In 1994, the Supreme
act quickly, because you may have as little
Court held that this approach was incorrect as 20 days to file an answer (response) in
and that attorneys’ fees must be awarded to the appropriate court. If you don’t respond
plaintiffs and defendants in an evenhanded in time, a judgment can be entered against
manner. In other words, the same criteria
you. Finding a lawyer is discussed in
must be applied to both plaintiffs and
The Copyright Handbook Page 53