Summary. A copyright plaintiff who registered on time can ask a jury for up to $150,000 per work without proving a dollar of loss. A plaintiff who registered late may recover only actual damages and profits, and no attorney's fees at all. That single timing rule, buried in 17 U.S.C. § 412, decides the economics of more copyright disputes than any doctrine of infringement. This article walks through the entire remedial scheme: the registration prerequisites of §§ 411 and 412 after Fourth Estate and Unicolors; the two-step proof of actual damages and infringer's profits with apportionment; the mechanics and constitutional limits of statutory damages; what counts as "one work"; willfulness and innocence; permanent injunctions after eBay; impoundment and destruction; costs and attorney's fees after Fogerty, Kirtsaeng, and Rimini Street; the limitations period after Petrella and Warner Chappell v. Nealy; criminal exposure; and the small-claims alternative at the Copyright Claims Board. It closes with a valuation method, a worked example, an FAQ, and related reading.

Two photographers call the same lawyer on the same Tuesday. Each found the same thing: a mid-sized e-commerce company used one of their images on a product page for eighteen months without a license. The image would have licensed for about $900.

The first photographer registered her image with the Copyright Office six weeks after she published it. Her case is worth somewhere between a nuisance settlement and $150,000, and if she wins she may recover her attorney's fees. The second photographer registered his image last week, after he found the infringement. His case is worth about $900, plus whatever profits he can trace to the image, which will be nearly impossible to prove, and he will pay his own lawyer.

Same infringement. Same defendant. Same image quality. The entire difference is 17 U.S.C. § 412.

That asymmetry is the most important practical fact in copyright law, and it explains behavior that otherwise looks irrational: why sophisticated content owners register in batches every quarter, why some plaintiff-side firms will not take a case unless registration predates infringement, and why defense counsel's very first document request is the deposit copy and the registration certificate.

This article explains the whole remedial system, from the registration gateway through the final fee award.

The short answer

Part I: The gateway — registration, and why timing is everything

Section 411: registration as a precondition to suit

For a United States work, "no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made." 17 U.S.C. § 411(a). For decades, the circuits split over whether filing the application sufficed. The Supreme Court resolved it unanimously in Fourth Estate: registration is "made" when the Register of Copyrights registers the claim, not when the applicant delivers the paperwork.

Two practical consequences follow. First, ordinary processing can take months, so an owner who discovers an infringement and wants to move quickly should consider special handling, an expedited examination available for an additional fee where litigation is pending or prospective. Second, § 411(a) is a claim-processing rule rather than a jurisdictional one, so it can be forfeited if not raised, but no competent defendant fails to raise it.

Note the carve-outs. The registration precondition applies to "United States works," so a foreign Berne work may be sued upon without registration, though the foreign owner who wants statutory damages and fees still has to reckon with § 412. Preregistration under § 408(f) is available for classes of works with a history of pre-release infringement (movies, music, software, and a few others).

Section 411(b): inaccurate applications and the Unicolors safe harbor

Defendants routinely attack registrations as invalid because the application contained an error. Section 411(b)(1) provides that an inaccuracy does not invalidate a registration unless the applicant included it "with knowledge that it was inaccurate" and the inaccuracy, if known, would have caused the Register to refuse registration. If those elements are alleged, the court must ask the Register whether the misstatement would have mattered. § 411(b)(2).

In Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 595 U.S. 178 (2022), the Supreme Court held that "knowledge" in § 411(b)(1)(A) covers mistakes of law as well as mistakes of fact. Unicolors had registered thirty-one fabric designs in a single application as a "single unit of publication" when they had not in fact been published together. Because Unicolors did not know that the single-unit rule required simultaneous publication, its registration survived. The decision substantially narrowed the invalidity defense, but it did not eliminate it, and applications that misstate publication status, authorship, or work-made-for-hire status remain vulnerable where the applicant plainly knew better.

Section 412: the rule that decides case value

Here is the operative text, paraphrased: no award of statutory damages or attorney's fees shall be made for (1) any infringement of an unpublished work that commenced before the effective date of registration, or (2) any infringement of a published work that commenced after first publication and before the effective date of registration, unless registration was made within three months after first publication.

Unpack that into the two rules people actually use:

  • Unpublished works: register before the infringement starts.
  • Published works: register before the infringement starts, or within three months of first publication (this three-month window is retroactive, so a work registered inside it gets full remedies even for infringement that began the day after publication).

Two traps deserve special mention. First, "commenced" means the first act in a continuing course of conduct. If a defendant started infringing in January and you registered in March, later acts in April do not restart the clock; courts overwhelmingly hold that infringement "commenced" in January and § 412 bars enhanced remedies for the entire course of conduct. Second, the effective date of registration is the date the Copyright Office receives a complete application, deposit, and fee, § 410(d), not the date the certificate issues. That is a rare piece of good news in an otherwise unforgiving rule.

The compliance advice writes itself, and it is the single highest-return thing a content business can do: register on a schedule. Photographers should use the group registration options for published photographs; software companies should register each significant release; publishers should register on publication. For the mechanics see Copyright Registration: A Comprehensive Guide and the format-specific walkthroughs in Copyright Registration of Computer Programs and Copyright Registration of Photographs.

Part II: Actual damages and the infringer's profits

Section 504(b) provides that the 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."

Two components, one anti-double-counting rule.

Actual damages

Actual damages measure the plaintiff's loss. Three theories dominate:

Lost sales or lost licensing revenue. The cleanest measure, and the one courts most readily accept where the plaintiff has a licensing history. If you license the photograph for $900 and the defendant used it without paying, $900 is a floor.

The hypothetical license or reasonable royalty. Where there is no established price, courts allow proof of what a willing buyer and willing seller would have agreed to before the infringement. This requires real evidence. In On Davis v. The Gap, Inc., 246 F.3d 152 (2d Cir. 2001), the Second Circuit endorsed a fair-market-value license measure for an eyewear designer whose work appeared in a Gap advertisement, while cautioning that the figure must be grounded in evidence rather than "undue speculation."

Value destruction. Rarer, but available: proof that the infringement destroyed the market for the work, damaged an exclusive licensing arrangement, or eliminated the value of a first-publication right.

The causation requirement is real. In Polar Bear Productions, Inc. v. Timex Corp., 384 F.3d 700 (9th Cir. 2004), the court allowed some damages categories and rejected others for failure to tie the claimed loss to the infringement, and it is a useful roadmap for both sides on what proof survives.

The infringer's profits, and the burden-shift that makes them attractive

Section 504(b) sets up a burden-shifting structure that plaintiffs love:

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.

The plaintiff proves gross revenue. Everything else is the defendant's burden. That is a powerful allocation, and it can produce very large exposure if a court reads "gross revenue" broadly.

Courts have imposed a limiting principle: the plaintiff's revenue showing must bear a "reasonable relationship" to the infringement. A plaintiff cannot put a conglomerate's entire annual revenue on the board because one division used a photograph. But within a plausible revenue stream, the defendant carries the burden of apportionment.

Apportionment is the defense's main tool, and it has a distinguished pedigree. In Sheldon v. Metro-Goldwyn Pictures Corp., 309 U.S. 390 (1940), the Supreme Court approved apportioning to the infringed play only 20 percent of the profits of a motion picture, recognizing that the stars, the production values, and the studio's marketing generated most of the value. Modern applications follow the same logic. In Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505 (9th Cir. 1985), the court apportioned profits of a Las Vegas revue that included an infringing act, and also allowed recovery of indirect profits from hotel and gaming operations to the extent causally connected. In Andreas v. Volkswagen of America, Inc., 336 F.3d 789 (8th Cir. 2003), by contrast, the Eighth Circuit sustained a large indirect-profits award where an artist's phrase was the centerpiece of an Audi television campaign and the defendant failed to carry its apportionment burden.

Indirect profits deserve their own note. Where the infringing use promotes a product rather than being the product (a photograph in an advertisement, music in a commercial), the plaintiff must first show a causal nexus between the infringement and the revenue stream; only then does the burden shift. Mackie v. Rieser, 296 F.3d 909 (9th Cir. 2002), is the standard defense citation for insisting on that nexus.

Deductible expenses. The defendant may deduct costs, but courts scrutinize overhead allocations, and a willful infringer is often denied overhead deductions altogether. That is a meaningful sanction hidden inside an accounting rule.

Part III: Statutory damages

The ranges

Under § 504(c), an owner may elect statutory damages instead of actual damages and profits, at any time before final judgment. The award is "for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally."

Category Range per work Source
Ordinary $750 to $30,000 § 504(c)(1)
Willful up to $150,000 § 504(c)(2)
Innocent (proved by defendant) as low as $200 § 504(c)(2)
Certain nonprofit/educational/public broadcasting uses with reasonable fair use belief remission to $0 § 504(c)(2)

The court has "wide discretion" within the range, and the statute supplies no factors. Courts commonly consider the expenses saved and profits earned by the infringer, the revenue lost by the owner, the deterrent value of the award, the infringer's state of mind, and the conduct and attitude of the parties.

Who decides

Feltner holds that the Seventh Amendment entitles a party to a jury determination of the amount of statutory damages, not merely of liability. That has a real strategic consequence: a plaintiff who wants a jury to hear about a sympathetic creator and a large corporate defendant elects statutory damages; a defendant facing an unsympathetic record may prefer to concede liability and fight over actual damages before a judge, if it can get there.

Constitutional limits

Two file-sharing cases mark the outer boundary. In Sony BMG Music Entertainment v. Tenenbaum, 719 F.3d 67 (1st Cir. 2013), the First Circuit upheld a $675,000 award ($22,500 per song for 30 songs) against a due process challenge. In Capitol Records, Inc. v. Thomas-Rasset, 692 F.3d 899 (8th Cir. 2012), the Eighth Circuit reinstated a $222,000 award ($9,250 per song for 24 songs). Both courts applied the St. Louis, Iron Mountain & Southern Railway Co. v. Williams, 251 U.S. 63 (1919), standard for statutory penalties (whether the award is "so severe and oppressive as to be wholly disproportioned to the offense") rather than the BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), punitive damages guideposts. The practical lesson: statutory damages awards within the statutory range are very hard to upset.

The "one work" problem

Because the award is per work, the definition of "work" is often worth more than the merits. Section 504(c)(1) provides that "all the parts of a compilation or derivative work constitute one work."

The governing test in most circuits is whether each component has independent economic value and can live a separate commercial life. Photographers registering hundreds of images in a group registration should note that group registration does not itself convert the images into a single compilation for damages purposes, though the way the works were issued and marketed will matter.

Willfulness and innocence

Willful does not require malice. It is satisfied by actual knowledge that the conduct infringes or by reckless disregard of the copyright owner's rights. Willfulness is the reason ignore-the-cease-and-desist-letter is such a bad strategy: continuing after notice is close to a per se showing. Willfulness must be proved by the plaintiff, and after Feltner it is a jury question where a jury is demanded.

Innocent infringement requires the defendant to prove it "was not aware and had no reason to believe" its acts infringed. Critically, § 401(d) forecloses the defense in mitigation of actual or statutory damages where a proper copyright notice appeared on the published copies to which the defendant had access. That is the strongest practical argument for continuing to place notices on works, and the reason our Copyright Notice: Form, Function, and Best Practices article treats notice as a remedies strategy rather than a formality.

Part IV: Injunctions, impoundment, and destruction

Permanent injunctions after eBay

Section 502(a) authorizes injunctions "on such terms as [the court] may deem reasonable to prevent or restrain infringement of a copyright." For decades, courts treated a finding of infringement as nearly automatic grounds for an injunction. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), a patent case, ended the presumption across intellectual property. A plaintiff must show (1) irreparable injury, (2) that remedies at law are inadequate, (3) that the balance of hardships favors an injunction, and (4) that the public interest is not disserved.

The Second Circuit extended eBay explicitly to copyright preliminary injunctions in Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010), rejecting the old presumption of irreparable harm on a showing of likely success. For the mechanics of emergency relief, see Preliminary Injunctions and Temporary Restraining Orders.

Where an injunction would be disproportionate, courts sometimes award an ongoing royalty instead, an approach borrowed from patent practice and increasingly common where the infringing element is a small part of a larger product.

Impoundment and destruction

Section 503 allows a court, at any time while an action is pending, to order impoundment of "all copies or phonorecords claimed to have been made or used in violation" of the exclusive rights, along with plates, molds, masters, and other reproduction articles. Final judgment may order destruction or other reasonable disposition. In software and digital cases, courts adapt this to orders requiring deletion of files, wiping of servers, or certification of destruction, which raises practical questions about verification that are worth negotiating into the judgment language rather than litigating later.

Part V: Costs and attorney's fees

The standard

Section 505 permits the court to allow recovery of "full costs" by or against any party, and to award a "reasonable attorney's fee to the prevailing party as part of the costs." Two Supreme Court decisions shape the discretion:

Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994), held that prevailing plaintiffs and prevailing defendants must be treated evenhandedly. Defendants do not have to show frivolousness or bad faith. The Court endorsed a nonexclusive list of considerations drawn from a Third Circuit opinion: frivolousness, motivation, objective unreasonableness (both factual and legal), and the need to advance considerations of compensation and deterrence.

Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197 (2016), held that courts should give substantial weight to the objective reasonableness of the losing party's litigating position, while retaining discretion to consider all other circumstances, including litigation misconduct and the need to deter repeated overaggressive assertions.

The result is a fee regime that genuinely cuts both ways, and it is why copyright defense counsel with a strong position often refuse to pay nuisance settlements.

What "full costs" means

In Rimini Street, Inc. v. Oracle USA, Inc., 586 U.S. 334 (2019), the Supreme Court held unanimously that "full costs" in § 505 means the six categories of costs specified in the general costs statutes, 28 U.S.C. §§ 1821 and 1920, and does not authorize awarding expert witness fees, e-discovery vendor charges, or jury consultant costs. The Court vacated roughly $12.8 million in non-taxable costs. This matters enormously for budgeting: a prevailing party recovers fees (if awarded) and a narrow set of taxable costs, not its full out-of-pocket expenses.

The § 412 bar, again

Fees are unavailable, no matter how egregious the infringement, if § 412 was not satisfied. That is the whole ballgame in low-value cases, because the fee award is often larger than the damages.

Part VI: The limitations period

Section 507(b) provides that a civil action must be "commenced within three years after the claim accrued."

When does a claim accrue? Most circuits apply the discovery rule: the claim accrues when the plaintiff knows or reasonably should know of the infringement. A minority position, urged by some defendants and by Justice Gorsuch in dissent in Nealy, is that the statute imposes a pure injury rule.

Petrella clarified that laches cannot bar a claim for damages brought inside the three-year window. Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014). The plaintiff there waited eighteen years to sue over Raging Bull and the Court held that Congress's limitations period, not judicial estimates of unreasonable delay, governs. Laches may still affect equitable relief in extraordinary cases.

Nealy answered the follow-on question. In Warner Chappell Music, Inc. v. Nealy, 601 U.S. 366 (2024), the Court held that where a claim is timely under the discovery rule, the Copyright Act imposes no separate three-year cap on damages. A plaintiff who timely discovers a decade-old infringement may recover for the entire decade. The Court expressly assumed without deciding that the discovery rule applies, so the deeper question remains open, and defendants continue to preserve it.

Separate accrual. Each infringing act starts its own limitations clock. A continuing course of conduct therefore produces a rolling series of claims, which is why an ongoing infringement is almost never time-barred outright.

Part VII: Criminal copyright infringement

Most copyright disputes are civil, but § 506 and 18 U.S.C. § 2319 make willful infringement criminal in three circumstances: infringement for commercial advantage or private financial gain; reproduction or distribution, during any 180-day period, of works with a total retail value over $1,000; and distribution of a work being prepared for commercial distribution by making it available on a publicly accessible network, knowing it was intended for commercial distribution. Penalties scale with value and recidivism, reaching ten years for repeat felony offenders. Section 506(c) and (d) separately criminalize fraudulent copyright notices and false representations in registration applications.

Businesses encounter this most often in the counterfeiting context, where copyright and trademark crimes overlap. See Counterfeiting, Seizure Orders, and Schedule A Litigation and What Are the Consequences of Pirating Intellectual Property.

Part VIII: The Copyright Claims Board

The Copyright Alternative in Small-Claims Enforcement Act of 2020 created the Copyright Claims Board, a three-member tribunal inside the Copyright Office, codified at 17 U.S.C. §§ 1501 to 1511. It began accepting claims in June 2022.

Key features:

  • Voluntary and opt-out. A respondent has 60 days after service to opt out; if it does, the claim is dismissed without prejudice and the claimant's only recourse is federal court. § 1506(i).
  • Damages caps. Total damages in any one proceeding may not exceed $30,000, exclusive of fees and costs. Statutory damages are capped at $15,000 per work for timely registered works and $7,500 per work (with a $15,000 aggregate cap) for works not timely registered. § 1504(e). Note that this is the one place in copyright law where a late registrant can still get statutory damages, albeit reduced.
  • Registration still required, although a claim may be filed if an application has been submitted. § 1505(a).
  • No injunctions, although the Board may include agreed-upon cease-of-conduct terms in a final determination.
  • Attorney's fees only for bad-faith conduct, capped at $5,000 in most cases. § 1506(y).
  • Very limited review. A final determination may be challenged in federal district court only on narrow grounds such as fraud, corruption, or misconduct. § 1508(c).

For a photographer with a $900 image and a defendant who will not opt out, the Board is a genuinely useful forum. For anyone who needs an injunction or faces a sophisticated adversary, it is not.

Part IX: Valuing a copyright case

Here is the method I use to put a number on a case in the first week, before discovery.

Step 1. Answer the § 412 question. Pull the registration certificate and the deposit. Compare the effective date of registration to the date infringement commenced and to the date of first publication. This single answer moves the valuation by one or two orders of magnitude.

Step 2. Count the works, carefully. Multiply nothing until you have decided whether you have one work or forty. Ask whether each component was separately registered, separately marketed, and separately licensed. Then discount for the risk that a court disagrees.

Step 3. Build the actual-damages floor. Find the plaintiff's licensing history for comparable uses. If there is none, look for industry rate cards, prior negotiations, and the defendant's own licensing spend on similar assets. A hypothetical license grounded in evidence is worth far more at mediation than a hypothetical license grounded in enthusiasm.

Step 4. Estimate the profits exposure and the apportionment discount. Identify the narrowest revenue stream reasonably related to the infringement. Then estimate honestly what fraction a court would attribute to the copyrighted material. In advertising and packaging cases the fraction is usually small; in cases where the work is the product it can approach one.

Step 5. Score willfulness. Was there notice? Was there a takedown? Was there an internal email saying "just use it"? Was there a prior license that expired? Willfulness is usually proved with documents that already exist, which is why early preservation matters. See Litigation Holds, Spoliation, and Rule 37(e).

Step 6. Price the injunction. Sometimes the money is irrelevant and the only thing that matters is stopping the use, or preserving the use. A defendant who must re-shoot a national campaign will pay a great deal to avoid an injunction that a damages model would never predict.

Step 7. Model the fee exposure both ways. Under Fogerty and Kirtsaeng, the loser may pay. A plaintiff with a weak claim and a defendant with a strong defense should both build a fee-shifting scenario into the settlement analysis.

A worked example

Cascade Print Co. (fictional) publishes a line of illustrated field guides. It licensed 40 botanical illustrations from a freelance illustrator, Rosa Ibarra (fictional), for a single print run of one title, under a written agreement that granted "North American print rights for the first edition." Cascade published the first edition in March 2022 and registered the book (as a compilation, listing Ibarra's illustrations as pre-existing material) that same month.

In 2023, Cascade launched a subscription mobile app that reproduced all 40 illustrations. It also used one illustration on a billboard. Ibarra registered her illustrations as a group of unpublished works in January 2021, before she delivered them.

Registration and § 412. Ibarra registered before any infringement commenced. Statutory damages and fees are available. This is now a serious case.

How many works? Forty separate illustrations, each separately created and separately licensable, registered as a group of unpublished works. Cascade will argue the app reproduces a single compilation. Ibarra will argue each illustration has independent economic value. A realistic outcome is somewhere in between, but even at a conservative reading the multiplier is significant.

Damages theory. Ibarra's licensing history gives a solid hypothetical license: she has licensed comparable illustrations for digital use at roughly $1,200 each. Actual damages therefore start near $48,000 for the app plus a separate figure for the out-of-home use. Cascade's app revenue is a plausible profits stream, though most of it is attributable to the text, the search feature, and the brand, so apportionment will cut hard.

Willfulness. The license said "print." Cascade's product manager wrote an email asking legal "do we need to go back to Rosa for the app?" and shipped before receiving an answer. That email is worth more than any expert report. Statutory damages in the willful tier are realistically in play.

Election. Ibarra will almost certainly elect statutory damages, because the per-work multiplier and the willfulness record dominate the hypothetical-license math, and because election preserves the fee claim.

Defense strategy. Cascade's best moves are (a) to fight the work-count aggressively, (b) to develop apportionment evidence early, ideally with a survey showing that subscribers bought the app for its search and geolocation features, (c) to cure by removing the illustrations immediately, which blunts the injunction and helps on willfulness going forward, and (d) to make an early, well-documented offer, because Kirtsaeng reasonableness is judged on positions taken throughout the case.

The lesson. Notice that the outcome was determined in January 2021, when Ibarra registered before delivery, and in the drafting of a five-word license grant. The litigation is just the process of discovering what those two decisions were worth. For the drafting side of this problem, see IP Transactions and Agreements Toolkit.

Special situations worth knowing

Multiple defendants. Statutory damages are awarded per work "for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally." Where defendants are jointly liable, the plaintiff gets one award per work, not one per defendant. Where a defendant is separately liable on separate acts, separate awards are possible.

Secondary liability. Contributory and vicarious infringers face the same remedial scheme. In platform cases, the interaction with the DMCA safe harbors is the real fight; see Digital Millennium Copyright Act Safe Harbors for Online Service Providers.

Section 1202 CMI claims. Removing or altering copyright management information carries its own statutory damages of $2,500 to $25,000 per violation under § 1203(c)(3)(B), and, importantly, § 412 does not bar them. That makes CMI claims valuable in cases where registration timing killed the ordinary statutory damages claim. Courts are split on whether § 1202(b) requires the removed CMI to have been part of an identical copy, and the "double scienter" requirement is a real hurdle, but the claim is worth pleading where the facts support it. Murphy v. Millennium Radio Group LLC, 650 F.3d 295 (3d Cir. 2011).

Section 1203 circumvention claims. Violations of § 1201 carry statutory damages of $200 to $2,500 per act of circumvention or per device. See The DMCA Anti-Circumvention Provisions.

Government defendants. Copyright claims against the United States go to the Court of Federal Claims under 28 U.S.C. § 1498(b), with no injunctive relief and a "reasonable and entire compensation" measure. State sovereign immunity is a serious obstacle after Allen v. Cooper, 589 U.S. 248 (2020), which struck down the Copyright Remedy Clarification Act's abrogation of state immunity.

Prejudgment interest. The Act does not mention it. Most circuits allow it in the court's discretion, particularly on profits awards, on the theory that the infringer had the use of the money.

Frequently asked questions

Do I have to register before I sue? For a United States work, yes, and Fourth Estate means the Copyright Office must actually have acted on your application. Budget for that, or pay for special handling.

I registered late. Is my case worthless? No, but it is different. You can still recover actual damages and the infringer's profits, and you can still get an injunction. You cannot get statutory damages or attorney's fees, so the case only makes economic sense if the provable damages or profits are substantial. A § 1202 claim, if the facts support one, is not subject to that bar. The Copyright Claims Board also permits reduced statutory damages for late-registered works.

How do I choose between statutory damages and actual damages? Compute both, and remember you can elect at any time before final judgment, which means you can take discovery on profits and still elect statutory damages if the accounting disappoints. Elect statutory damages when the work count is high, the provable loss is low, or the willfulness record is strong. Elect actual damages and profits when the infringement drove real revenue and you can prove the nexus.

What is a work worth "per work" if my whole photo library was scraped? That depends on how the works were registered and issued. A group registration of published photographs does not automatically make them a compilation, but a defendant will argue it does. Because the multiplier drives everything, decide this before you file, and consider whether to assert a subset of clearly independent works rather than the entire library.

Can I get punitive damages? Generally no. Statutory damages serve the punitive function in copyright, and courts routinely hold that punitive damages are unavailable in addition. A few decisions have allowed them in unusual circumstances, but do not build a case on that.

Is a settlement demand of $150,000 per image realistic? Almost never, and demands like that are one reason courts have grown skeptical of high-volume copyright plaintiffs. The statutory maximum is a ceiling for willful infringement, not a starting point. Courts and mediators respond to evidence-based numbers.

We are the defendant and we found the images through a stock site. Are we protected? Possibly, in part. If you have a license from a legitimate source, you may have a license defense and an indemnity claim against the licensor. If the "stock site" was an aggregator with no rights, you may still be liable, though the innocent-infringement mitigation may be available if no notice appeared on the copies you accessed. Preserve your license records immediately.

How long do I have to sue? Three years from accrual, § 507(b), which in most circuits means three years from when you knew or should have known. Nealy confirms that a timely claim can reach older damages. Do not rely on that if you can file promptly; the availability of the discovery rule itself remains contested.

Can the losing side make me pay their fees? Yes, if § 412 is satisfied for the claim and the court exercises its discretion under § 505. Kirtsaeng tells courts to weight objective reasonableness heavily. This runs in both directions and should shape settlement posture from day one.

Closing thought

Copyright's remedial scheme rewards preparation more than it rewards outrage. The plaintiff who registered on a schedule, kept a licensing history, sent a clean notice, and preserved the emails will do well. The plaintiff who registered the week after finding the infringement will discover that the law offers sympathy and very little money.

For defendants, the mirror image holds. Most catastrophic copyright outcomes trace to a single ignored email, an expired license nobody diarized, or a "just use it" decision made by someone without authority to make it. The fix is procedural, not legal: keep an asset register that records the source and scope of every license, route new uses through a check, and answer cease-and-desist letters promptly and in writing.

Related articles

This article is provided for general informational purposes and does not constitute legal advice. Copyright remedies turn on registration dates, work counts, and evidentiary records that vary case by case. Consult qualified copyright counsel about any particular matter.