The Brief Writer

For a willful infringement, the Copyright Act provides for the following damages:

In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000.  In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.

In the case of Cynthia Hunt Productions, Ltd. v. Evolution of Fitness Houston, Inc., 2007 U.S. Dist. LEXIS 60098 (August 16, 2007), the court found the Evolution had willfully infringed CHP's copyrights by using a video and photographs on its website without license.  In settling on the amount of statutory damages, the court looked at other caselaw and said:

In cases involving willful infringement after a defendant has refused a licensing offer, courts frequently award statutory damages in amounts that are between two and three times the license fee refused by the defendant.

In Cynthia Hunt Productions, the court found that the invoiced and unpaid amounts of $1,000 for the photography and $1,082.15 for video production were consistent with the parties' agreement.  The court then awarded $6,246.45 as statutory damages for the defendant's willful infringement.  The court also allowed for attorneys' fees, but required the plaintiff to resubmit its fee evidence.  The plaintiff claimed $52,712.50 in attorneys' fees.

One lesson of this case is that attorneys' fees can constitute the largest part of a copyright award.  Consequently, it is extremely important that works be registered prior to the chance of any infringement.