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How is damage calculated when infringing a copyright? I am seriously wondering how it's calculated. Let's say someone post an image he found on Google without attribution on facebook or reddit, then how would the damage be calculated? I am thinking the case would be rejected, because those images that don't have any watermark, and can be found on Google is unlikely to generate a lot of money. Moreover, it might increase traffic to the individual's blog or website if he has one, so I am curious, because if significant money could be obtained, everyone on social media would get sued by some law firm.

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  • There is also the possibility of statutory damages which can be significantly higher than actual damages, and the fact that the copyright holder can demand that you stop infringing.
    – gnasher729
    Dec 1, 2021 at 0:06
  • In which country?
    – Dale M
    Dec 1, 2021 at 0:16
  • I don't see how a watermark would matter. Watermarks are usually from Stock Photo providers to discourage you from willy-nilly copying, and to encourage you to get the 'official' version (for a fee). I'm pretty sure that in most cases copying the watermarked version is also an infringement.
    – Brandin
    Dec 1, 2021 at 14:30

3 Answers 3

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Under 17 USC 504 a successful plaintiff is entitled to either:

(1) the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection (b); or

(2) statutory damages, as provided by subsection (c).

but not both.

Actual damages and profits are further specified:

The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

Statuary damages consist of a sum between $750 and $30,000 for each work infringed "as the court considers just". If the infringement is "willful" the upper limit is $150,000. If the infringement is "innocent" the lower limit is $200.

However under 17 USC 412 statutory damages and legal fees are not available unless the work was registered before the infringement started, or within 3 months of the work's first publication. If the registration was later, then only actual damages and profits (plus costs) are available as money damages.

Under 17 UDC 502 the plaintiff can get an injunction against further infringements.

Under 17 UDC 503 the plaintiff can have unauthorized copies or phonorecords (recordings) and devices for making such unauthorized copies or phonorecords (plates, type, masters, etc) seized and later destroyed or in some cases handed over to the plaintiff.

Under 17 UDC 505 the court may, if it sees fit, award to either party "full costs" plus "reasonable attorney fees" but for the plaintiff any fee award is limited by 17 USC 412 as mentioned above. "Reasonable attorney fees" are often significantly less than the actual law firm charges.

Conclusion

A successful plaintiff in a US copyright infringement action may get:

  • An injunction against the defendant;
  • seizure and destruction of infringign articles;
  • actual damages plus infringer's profits, or statutory damages; and
  • full costs and reasonable attorney's fees.

Such a suit will only be profitable if provable actual damages or profits are sizable, or sizable statutory damages are likely.

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  • If no profit is made, the claimant can get statutory damage? How come no lawsuit seems to have been filed against an individual posting on social media? All the court cases I saw involved a big firm.
    – Sayaman
    Dec 1, 2021 at 2:00
  • @Sayaman 17 USC 504 (c) (1) reads: "the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages" so it is the plaintiff's choice, presumably made after discovery shows what the profits are likely to be. profits go with actual damages; statutory damages replace both. Social media posts usually would involve no profits and little if any actual damages, and a court might be inclined to ward only small sums as statutory damages, and so would often be losers even if won. Dec 1, 2021 at 2:34
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The remedies available for copyright infringement are:

  • an injunction,
  • either damages or an account of profits.

That is, the owner is entitled to either recoup the money they lost or get the benefit that the infringement made whichever’s the owner chooses.

Unlike the there are no statutory damages, however, also unlike the US, costs generally follow the event so if the defendant loses, they have to pay the plaintiffs scheduled legal costs (typically 60-70% of the actual costs). The typical costs of an injunction are around $20,000, a full trial can be considerably more.

The court may also award additional damages depending on the circumstances.

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In the US, the DMCA is the usual way that copyright is enforced on social media. It offers the following options: takedown of the offending content, up to $2,500 per infringement or $25,000 in statutory damages for small offences, tripled for repeat offenders, and up to $1,000,000 and ten years in prison for large offences.

Small offences are typically those made by people who share on social media, while large offences would be those who use the content to make money off of the copyright holder's works.

Keep in mind that, while this sounds like a lot of money on the table, there's a few things that stop rampant lawsuits.

First, lawyers are expensive, such that very minor offences might actually cost more to prosecute than the money that would be coming back.

Second, most people sharing on social media wouldn't even be able to pay such a large sum of money, so the actual value would be far less than the maximum, but the lawyers still have to be paid.

Third, court cases take time, possibly months or years from the original case being filed, so it's not necessarily worth the time investment to go after every possible case.

Fourth, lawyers don't generally hold the copyright themselves, so they can't do anything without the copyright holder's instruction. The copyright holder is the one that gets paid, so it wouldn't work for lawyers to just sue and then pocket the money.

The DMCA takedown option makes it trivial to give someone an "injunction" without actually going through the court system. It takes mere moments, tends to deter most such activity, and can be automated or processed by a third-party company whose job it is to perform such monitoring and takedowns.

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