Q&A – When You Are Eligible for Statutory Damages for Infringements

Q.  When am I eligible for statutory damages for an infringement?

A.  The test as to 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For Unpublished Images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.

Note:  If you don’t register your image before filing suit (regardless of whether it was published or unpublished at the time of the infringement), your suit (in most courts), will be dismissed for lack of subject matter jurisdiction.  17 USC 411.

So, in sum, it’s always best to register your images as soon as possible!

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