The final part on our “Tools to Enforce Your Copyright” series, we’re going to look at a brief overview of the benefits and drawbacks of filing a copyright infringement lawsuit against your infringer.
Now I’m a lawyer. So this is naturally my favorite way to resolve a case of purposeful copyright infringement. But it may not always be the best way for everyone to go. Let’s talk first about the benefits of filing an infringement lawsuit, then we’ll take a look at some of the drawbacks to consider. The benefits:
- It won’t cost you any money out-of-pocket to hire a lawyer. Yep, that’s right. If you hire a lawyer JUST to draft a cease and desist letter or a DMCA take-down notice, you’ll have to pay them hourly. But if you’re willing to file a lawsuit to protect your rights, a lawyer will handle everything for you, at no cost, including the Cease and Desist Letter. This is because Copyright Laws allow attorneys to recover attorney’s fees from infringers if you sue, so the person or company who “stole” your work has to pay, not you.
- If that wasn’t enough of an incentive, retaining a lawyer to enforce your copyright also means that you can get back to creating, while someone else handles the enforcement of your copyright and the collection of your damages.
The Problems with Filing a Copyright Infringement Lawsuit
Before a lawyer would be willing to take your case and sue on your behalf, you must meet certain strict requirements.
First, you must have a valid, registered Copyright. A lawyer most likely will not accept your case unless you have a properly-registered copyright, because no registration = no attorney’s fees. In fact, it is required by law to have a valid copyright registration or to have filed for registration before you can even sue for copyright infringement. So unless you have the money to pay a lawyer hourly out-of-pocket (I charge $500 an hour for non-litigation services by the way, which is extremely cheap for a New York lawyer), you won’t have much luck finding someone to handle your lawsuit for you.
Hopefully you’re in the practice of regularly registering your works, and you registered your work before the infringement occurred. If so, fantastic. You should contact a copyright litigation lawyer to learn more about what type of financial recovery may be available to you. Unfortunately,statutory damages and attorney’s fees are only available for plaintiffs who possess a timely filed copyright registration (registration filed either three months after publication or before any infringement occurs). So if you failed to properly register your work before it was infringed, you are no longer eligible to recover statutory damages and attorney’s fees, and you must pay your lawyer out-of-pocket to defend your rights. So please get into the habit of registering your photos every three months!
The other potential problem with filing a copyright lawsuit is similar to sending a DMCA take-down notice. You must be absolutely sure you’re right. If you lose your copyright infringement lawsuit, the defendant could sue YOU for their attorney’s fees. That rarely happens, but you should be aware it is a possibility.
How do you qualify for the maximum amount of statutory damages?
If you follow proper procedures to protect your work, and you properly registered your work, and your lawyer can demonstrate willful infringement, you may be eligible to recover up to $150,000 in statutory damages from your infringer. But what does “up to” mean?
Statutory damages awarded in copyright infringement cases are almost always going to be a reflection of actual damages in some way, shape or form. In other words, a plaintiff is not going to be entitled automatically to the maximum $150,000 in statutory damages. In many cases of willful infringement, for example, the plaintiff will receive something around three times the amount of actual damages. So in a case where willful infringement is clear and the infringer made $30,000 from the infringement, the plaintiff will most likely be seeking $90,000 or more, plus attorneys’ fees and costs, plus, any additional losses suffered by the plaintiff. In cases of non-willful (innocent) infringement, the plaintiff is going to be entitled to actual damages, with the bulk of those actual damages being the defendant’s profits, barring significant losses to the plaintiff.
The THREE biggest factors that the courts consider when determining an award for statutory damages in a copyright infringement lawsuit are:
- The amount of profits made by the infringer;
- The amount of losses to the plaintiff (the copyright owner);
- Whether the infringement was willful or non-willful;
Some additional factors the courts consider when issuing damages awards are:
- Past infringements and patterns of infringement by certain infringers;
- The amount of cooperation by the infringer in divulging the full extent of their profits and being cooperative in pulling the infringing products.
A common tactic that experienced copyright litigators do is to research if the copyright infringer has been sued in the past for copyright infringement. The courts often consider this as evidence of a pattern of infringement, and increase statutory damages awards accordingly.