Monday, August 15, 2011

How Much Is My Copyright Case Worth?

I frequently hear this question. Because of the nature of my practice (contingent fee), I am usually just as interested as the copyright owner about the answer. While I can’t tell you exactly what your case is worth unless you tell me about it, here are several of the things I consider.
  • Was the work registered before infringement began? Hopefully, yes. If your work was registered before the infringement commenced, then there are several additional damages options available to you, namely statutory damages and attorneys fees. Statutory damages are like liquidated damages. They are an amount of money that you can be awarded without having to prove anything else. If you work was already registered, you can also get an award of reasonable attorneys fees if you prevail.
  • What would you have charged for the infringing use of your work? You can always get an award of what's called “actual damages” for infringement. In essence, this means the amount of money that you would have charged for the type of conduct that constituted the infringement. Someone sold 500 copies of your book without your permission? What would you have charged for those 500 copies of the book? That’s your actual damages.
  • How much money did the infringer make distributing your work? You can also get an award of the infringer’s profits resulting from the infringement. This means regardless of what you yourself would have made on the sale of your work, if the infringer made money, you can get it. Someone sold 500 copies of your book without your permission and made $500,000? You could be entitled to an award of that $500,000 even if you yourself would have only charged $500.
  • How much money did the infringer make selling its own products in connection with your work? Sometimes you can even get an infringer’s profits from the sales of its own product if those sales can be tied to your infringement. "Big Company" gave away 500 copies of your book without your permission, and those giveaways resulted in $5 million in sales of Big Company's own product? You could be entitled to an award of that whole $5 million. This would be the extreme case, but it is not unheard of.