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‘Willful’ copyright infringement and damages

On Behalf of | Dec 19, 2023 | Trademarks and Copyrights

Because of digital technology and the Internet, it’s easier than ever to copy something and distribute it all over the world. This has profound implications for copyright law and business. It’s so easy to copy protected works that some people think that copyright law doesn’t apply to them. They can later find out that they were badly mistaken.

$6.3 million judgment

Recently, a court ruled in favor of a photographer in a copyright infringement case, awarding him an eye-popping $6.3 million in damages.

The case involves a senior living company that used 43 images by an architectural photographer without a licensing agreement. The photographer sued the company for copyright infringement. Rather than settling the case, the company went to court, arguing that there was no infringement.

After reviewing the evidence, the jury found the defendant liable for willful infringement. For at least some of the images, the jury awarded the maximum amount of damages: $150,000.

Willful infringement

The question of damages in a copyright case can be complicated. In some cases, a plaintiff can show actual damages by showing how much money the defendant made by unlawfully using copyrighted material. The Copyright Act also provides for statutory damages, which means that a plaintiff can recover a specified amount in damages even if they don’t have evidence of actual damages.

Generally, the law allows these statutory damages to be higher in cases of willful infringement — that is, cases in which a defendant had actual knowledge that what they were doing was copyright infringement, or acted with reckless disregard for whether what they were doing constituted copyright infringement.

Unintentional or “innocent” infringement can carry a penalty of $200 per work infringed. Willful infringement can carry a penalty of up to $150,000 per work infringed.