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Statutory damages

copyright statutory damages / willful infringement damages / 17 U.S.C. 504(c)

In short

Statutory damages are a copyright award a court sets within ranges fixed by law, without the owner proving any loss: $750 to $30,000 per work, and up to $150,000 if the infringement was willful. In federal court they generally apply only to works registered in time, so registration dates shape what one unlicensed website photo can cost.

A copyright owner suing for infringement can recover actual damages plus the infringer's profits, or elect statutory damages at any time before final judgment. The House report on the Copyright Act says an owner is not obliged to submit proof of damages to rely on them.

Section 504(c) sets the standard range at $750 to $30,000 per work. The statute makes it one award for all infringements of one work by one infringer, or by infringers jointly liable. The House report adds that this holds no matter how many acts of infringement are involved. All the parts of a compilation or derivative work count as one work.

The range can move either way. If the owner proves the infringement was willful, the court may raise the award to as much as $150,000 per work. If the infringer proves it was unaware and had no reason to believe it was infringing, the court may cut the award to as little as $200.

Copyright exists from the moment a work is created, and registration is voluntary, though a lawsuit over a U.S. work requires it. Section 412 bars statutory damages and attorney's fees for infringement of an unpublished work that began before its registration took effect. For a published work, it covers infringement that began between publication and registration, unless registration came within three months after first publication. Preregistered works and a few other kinds of action follow their own rules.

The Copyright Claims Board, a voluntary forum in the Copyright Office, uses lower limits, with total damages capped at $30,000. Statutory damages reach $15,000 per work registered in time. Works not registered in time but otherwise eligible can receive up to $7,500 each, and $15,000 in total per proceeding. A claim there needs at least a pending registration application. The Board does not consider willfulness. A respondent can opt out, but one that neither opts out nor takes part risks a default determination.

In practice

A roofing company's website uses four photos its designer found through an image search. The photographer had registered all four, each as a separate work outside any compilation, before the site went live, and sues in federal court. The court's standard range for the four works runs from $3,000 to $120,000. If the court finds the copying willful, the ceiling rises to $600,000. Suppose instead the site began using them after publication but before registration, and the photographer registered more than three months after first publishing them. In federal court, the only money remedy left would then be actual damages and profits. The figures are a worked example.

Not the same as

Actual damages and profits
Actual damages and profits are the other remedy a copyright owner can choose. The owner recovers its proven losses plus any of the infringer's profits from the copying that the losses do not already count, with no upper limit in federal court, and late registration does not remove them.

Why it matters to you

The exposure runs in both directions. A photo, illustration or block of copy used on the business's website without a license can draw a separate statutory award for each work. When the business holds the copyright in work it commissioned, prompt registration protects it. Registering within three months after first publication keeps statutory damages and attorney's fees available in federal court against anyone who copies it after publication.

What to ask or check

  1. 01Where did each photo, illustration and block of copy on your website come from, and is a license on file for it?
  2. 02Does your designer or agency confirm in writing that the images it supplies are licensed for your use?
  3. 03Does the business hold the copyright in the work it commissioned, and has any of it been registered?
  4. 04If a demand letter reaches the business, which works does it name, and when was each one registered?

What people get wrong

That a photo or page nobody registered carries no copyright risk. Copyright exists from the moment a work is created. In federal court, late registration generally removes statutory damages and attorney's fees, while actual damages and profits can still be recovered.

Red flags

  • A designer or agency that supplies stock-style photos for the website and cannot say where they came from or under what license.

Keep reading

Work made for hire

Work made for hire is the legal category that decides who owns something you paid to have made. Copyright starts with whoever created the work. For commissioned work it only becomes yours through one of two narrow routes in the statute, and software fits neither by default.

DMCA designated agent

A DMCA designated agent is the contact a website or online service registers with the US Copyright Office to receive copyright takedown notices. Sites that let users post material need one to qualify for the safe harbor from infringement liability. The registration expires after three years unless it is renewed.

Trademark

A trademark is a word, phrase, symbol or design that identifies your goods or services and indicates where they come from. It is not ownership of the word itself. The USPTO is blunt about that: rights attach to how the word is used with your specific goods or services, not to the word in general.

Liquidated damages clause

A liquidated damages clause sets, in advance, the amount or formula one party owes the other if it breaks the contract. Courts generally enforce one only when the figure is a reasonable estimate of harm that is hard to prove, and refuse one that works as a penalty.

Consumer Review Fairness Act

The Consumer Review Fairness Act voids contract terms that stop customers reviewing you. A provision of a standard-form contract is void from the start if it bars a review, penalizes one, or takes the reviewer's intellectual property. Removing abusive or irrelevant content is still allowed.

Typical results

Typical results is the standard a testimonial has to meet before it can be advertised. The FTC Endorsement Guides treat a specific result as a claim about what customers will generally achieve, and the Commission tested the usual disclaimers. Neither one reduced that impression, so a caveat does not fix an unrepresentative case study.

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