Can I Get Damages Without A Registered Copyright

Let's suppose that you have not registered your copyright in a book with the U.South. Copyright Office and you detect someone has infringed your copyright by copying substantial portions of your book.  Allow's also suppose you are able to show that the alleged infringer has infringed your work and y'all accept notified the alleged infringer regarding the infringement of your copyright. Let'southward further suppose that you cannot bear witness that the infringement caused you lost sales, lost opportunities to license, or diminution in the value of the copyright.

In about cases, it is desirable to negotiate with the declared infringer from the position that y'all are entitled to statutory damages for the copyright infringement.  If y'all are not entitled to statutory damages, can you recover actual damages? Can you bear witness that a license to produce the portions of your volume has a fair market value for actual damages?  Tin you receive payment by the alleged infringer of the off-white market place value of the portions of your book illegally copied as recovery for bodily damages? Can you lot get a licensing fee as fair market value for bodily damages for the copyright infringement?  The answer to all these questions is Yep!

Under 17 U.South.C. § 412, no award of statutory damages or of chaser's fees shall be made for—(one) any infringement of copyright in an unpublished piece of work commenced before the effective appointment of its registration; or (ii) any infringement of copyright commenced after first publication of the work and before the effective appointment of its registration unless such registration is made inside 3 months after the first publication of the piece of work.  If yous did not register your copyright before the infringement occurred or within three months after the offset publication of the work and the infringement occurred, you will not be entitled to statutory damages.

Since you are not eligible for statutory damages, you will accept to negotiate with the alleged infringer for your bodily damages and whatever boosted profits of the alleged infringer.  Under 17 U.s.C. § 504, the copyright owner is entitled to recover the actual damages suffered as a result of the infringement, and any profits of the alleged infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the alleged infringer'due south profits, the copyright owner is required to nowadays proof but of the alleged infringer'south gross revenue, and the declared infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work. See 17 UsaC. § 504.

While you may recover actual damages and profits for the alleged infringement, the award of the alleged infringer's profits examines the facts only from the alleged infringer's point of view. On Davis v. Gap, Inc., 246 F.3d 152, 159 (second Cir. 2001).  If the alleged infringer has earned a profit, this laurels makes him disgorge the turn a profit to ensure that he does non benefit from his wrongdoing and the award of the possessor's actual damages looks at the facts from the signal of view of the copyright owner; it undertakes to recoup the owner for any harm he suffered past reason of the infringer'southward illegal human action. See more often than not Fitzgerald Publ'k Co. v. Baylor Publ'chiliad Co.,807 F.2nd 1110, 1118 (second Cir. 1986);Walker v. Forbes, Inc.,28 F.3d 409, 412 (4th Cir. 1994); On Davis 5. Gap, Inc., 246 F.3d 152, 159 (2d Cir. 2001).

Because of the declared infringement, yous may not merits unreasonable amounts as the license fee.  The amount of damages may not be based on "undue speculation".  In other words, the question is not what you would take charged, merely rather what is the fair market value.  In order to make out your claim that y'all have suffered bodily damage because of the alleged infringer's failure to pay the fee, y'all must show that the portions taken had a fair market value. Thus, the courts have considered the market value of the uncollected license fee as an element of "actual damages" nether § 504(b). Run into On Davis v. Gap, Inc., 246 F.3d 152, 166 (2d Cir. 2001). In On Davis 5. Gap, Inc., 246 F.3d 152, 172 (2d Cir. 2001), the Court ended that Section 504(b) permits a copyright owner to recover actual amercement, in appropriate circumstances, for the fair market place value of a license covering the infringing utilize.

Based on the in a higher place scenario, you should try to negotiate with the alleged infringer as to a fair market value of a license roofing the copied portions of your book.  In the negotiations with the alleged infringer, your fair market value cannot be speculative and should be based on prior licensing or licensing by others of similar works.  If the negotiations break downwardly or the fair market value cannot be agreed to with the alleged infringer, you will need to annals your copyright on the book with the U.S. Copyright Part before you can sue for infringement.  Under 17 U.S.C. § 411, no ceremonious activeness for infringement of a copyright in any United States piece of work shall be instituted until preregistration or registration of the copyright merits has been made.  Although registration of a U.South. copyright typically takes ix months, yous tin expedite the registration by requesting "Special Treatment" when you utilize for your copyright registration.  Under the U.Due south. Copyright Function rules, Special Handling is granted based on prospective litigation and payment of the fee.  In one case the U.S. Copyright Role receives a request for Special Handling and information technology is approved, the copyright application is processed typically within 5 working days. Still, the U.S. Copyright Office makes no guarantee that the copyright application can be processed within this fourth dimension frame.

In summary, if you are able to show infringement of your copyright even though it is not registered and you notify the alleged infringer of the copyright infringement, you volition not be entitled to statutory amercement and will simply be able to recover actual amercement.  Although you cannot show that the infringement caused lost sales, lost opportunities to license, or diminution in the value of the copyright, you tin still negotiate for the fair market value of a license covering the declared infringing use.  The fair market value cannot be speculative and should be based on prior licensing or licensing by others of like works.  Therefore, the lesson to be learned is that you tin can still recover bodily damages for copyright infringement, but the improve practice is to register your copyright with the U.S. Copyright Part earlier the infringement occurs so that you tin recover statutory damages.

Can I Get Damages Without A Registered Copyright,

Source: https://www.jdsupra.com/legalnews/damages-for-copyright-infringement-5432434/

Posted by: kiddburs2001.blogspot.com

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