Compensating You for Copyright Infringement

I researched for weeks, test drove many models, and ordered my new car in September. It finally arrived mid-December. Today, while stopped at a red light during a snow storm, a driver lost control of his car and side-swiped me (damage shown above). My neck and back are stiff and sore. I’ve already spent time with the police and the insurance company, I’ll be without my car while it is repaired, the car’s value will drop, and my physical injuries may persist. The other driver was 100% at fault. What will I get out of all of this? Only the amount that purportedly puts me back in the condition that I was during the seconds before the crash. Specifically, the insurance company will repair my car and pay for my medical treatments. I could sue for pain and suffering. But I’ll never recover for my lost time or the hassle of all of this. Even if the driver had been drunk, I wouldn’t recover any more in damages. Is it fair? Maybe not, but it’s the law.

Such is the case for copyright infringement. If someone infringes your copyright and you haven’t timely registered your photo with the US Copyright Office, then you are eligible only for “actual damages.” Courts usually calculate actual damages based on your normal license fees and/or industry standard licensing fees. In sum, you’re entitled to the amount that the infringer should have paid to you if the infringer had requested a license from you in advance of the infringement.

You also may recover the profits the infringer made from the infringement if they aren’t too speculative because the law is designed to prevent others from profiting from their bad acts (for example, “slayer statutes” prevent a murderer from inheriting from the person murdered). Unfortunately, actual damages usually aren’t worth a lot because licensing fees are relatively low.

Whether you are eligible for statutory damages for an infringement depends on when you registered your image. Specifically:

For Published Images —

Step 1 – if your image is infringed anytime between the time you publish it and the time you register it (as long as you register it within 3 months of first publication), then you are eligible for statutory damages

Step 2 – if you don’t register your published image within three months of first publication, then you get statutory damages only if you register your image before the infringement begins.

For Unpublished Images —

You get statutory damages only if you register your image before the infringement.

See 17 USC 412. The purpose of § 412 and providing statutory damages “was to encourage early registration.” See Andrew Berger’s article, Statutory Damages in Copyright Litigation, 81 N. Y. State Bar Journal at p. 31.

While photographers are frustrated that they are eligible for statutory damages only if they timely register their copyrights, they should be grateful that they are available at all. I certainly wish that I could have done something to get back more than a repaired car that will never be the same as new.

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