What can you recover in a copyright infringement lawsuit?

Our page on copyright and trademark law makes the point that owning a copyright and being able to enforce it are two different things. This page covers the enforcement side: what a federal court can award once infringement is proved, which rules set the amount, and the deadlines that can end a claim early. Proving the infringement itself is covered in our post on copyright and trademark infringement.

How a copyright damages claim moves, step by step

1. Confirm you can sue. The legal or beneficial owner of an exclusive right may sue for infringement of that particular right committed while it owned the right (17 U.S.C. 501(b)).
2. Get the registration issued. For a U.S. work, the suit waits for registration or a refusal (section 411(a)). For pending or prospective litigation, special handling costs $800 on top of the filing fee, and the Office makes every effort to finish examination within five working days, without a guarantee (Circular 10).
3. Choose the first move. Many disputes start with a demand letter, the subject of our post on cease and desist letters. Smaller claims can go to the Copyright Claims Board, and larger ones to federal court.
4. File in federal district court. Within one month after a copyright case is filed, the clerk must send the Register of Copyrights the names of the parties and the title, author and registration number of each work, and later the final judgment (17 U.S.C. 508). Our page on what happens in an Atlanta federal IP lawsuit covers the local steps and deadlines.
5. Build the damages record in discovery. Revenue figures, license history and sales data are gathered while liability is fought.
6. Elect statutory damages if they are better. The choice can wait until any time before final judgment (504(c)(1)).
7. Judgment and orders. The court sets the award and rules on fees, an injunction and the infringing copies.

Do you need a registration before you can sue?

For most owners, yes. Under 17 U.S.C. 411(a), no infringement suit over a "United States work" may be filed until the claim has been preregistered or registered. A published work qualifies as a U.S. work if it was first published here, among the other situations listed in 17 U.S.C. 101. If the Copyright Office refuses a properly filed application, the applicant can still sue after serving notice on the Register of Copyrights.

In Fourth Estate Public Benefit Corp. v. Wall-Street.com (2019), the Supreme Court held that registration occurs when the Copyright Office registers the copyright, not when the owner applies, so a pending application is not enough. Once registration is in hand, the owner can recover for infringement that happened both before and after it. Because examination takes months, our page on copyright registration cost and processing time is worth reading before a dispute starts.

What are actual damages and the infringer's profits?

The owner can pursue one of two kinds of money award (17 U.S.C. 504(a)). The first is actual damages, meaning the harm the infringement caused, plus any of the infringer's profits from it that were not already counted in those damages (504(b)). For profits, the owner only has to prove the infringer's gross revenue; the infringer must then prove its deductible expenses and any share of profit that came from something other than the work. The registration timing rule below limits only statutory damages and fees, so this route stays open after a late registration, but the award is only as large as the proof.

How do statutory damages work?

Instead of proving losses, the owner may elect statutory damages at any time before final judgment (504(c)(1)). The court picks the amount it considers just, from $750 to $30,000 per work. The count is per work, not per copy: one award covers all infringements of a work in the case by one infringer, or by infringers who are jointly liable. All the parts of a compilation or derivative work count as one work.

Two adjustments move the range (504(c)(2)). If the owner proves willful infringement, the court may raise the award to as much as $150,000 per work. If the infringer proves it was not aware and had no reason to believe it was infringing, the court may lower the award to as little as $200. That innocent infringer argument gets no weight when a proper copyright notice appeared on the published copies the infringer had access to, apart from a narrow exception for certain nonprofit schools, libraries, archives and public broadcasters (17 U.S.C. 401(d)). Crediting the creator does not help either, as our post Debunking Copyright's Most Common Myths, Part I explains.

When does late registration rule out statutory damages and fees?

This rule most often decides what a claim is worth. Under 17 U.S.C. 412, a court may not award statutory damages or attorney's fees for:

• infringement of an unpublished work that began before the registration's effective date; or
• infringement that began after first publication and before the effective date, unless the work was registered within three months after first publication.

The effective date is the day the Copyright Office has received the application, deposit and fee, all later found acceptable (17 U.S.C. 410(d)), not the day the certificate arrives. Preregistered works have their own timing rule.

Can you recover your attorney's fees?

Possibly, never automatically. Under 17 U.S.C. 505, the court in its discretion may allow full costs and award a reasonable attorney's fee to the prevailing party. That can be either side, so an owner who loses can be ordered to pay the defendant's fees. For an owner, fees are also subject to the section 412 timing rule.

What can a court order besides money?

A court can grant temporary and final injunctions on reasonable terms to prevent or restrain infringement, operative throughout the United States (17 U.S.C. 502). While the case is pending, it may impound infringing copies, the masters or other means of making more, and records of their manufacture and sale; a final judgment may order the copies and masters destroyed or otherwise reasonably disposed of (17 U.S.C. 503). That power is a key difference from the Copyright Claims Board, which caps total damages at $30,000 and cannot order a respondent to end an activity unless the respondent agrees (CCB FAQ).

How long do you have to sue, and what did the Nealy case decide?

A civil copyright claim must be filed within three years after it accrued (17 U.S.C. 507(b)). In Warner Chappell Music v. Nealy (2024), Sherman Nealy sued over infringements going back ten years under the discovery rule, which starts the clock when the owner discovers the infringement. Warner Chappell argued that damages could reach back only three years. The Supreme Court disagreed: the statute sets a filing deadline, not a separate damages cap, so an owner with a timely claim may recover no matter when the infringement occurred.

The Court left one question open. It assumed, without deciding, that the discovery rule governs copyright claims, and three dissenting Justices argued the Act almost certainly does not allow one. Until that is settled, waiting after you learn of an infringement is a risk worth avoiding.

What changes the amount you can recover

• Preregistration. A work preregistered under 17 U.S.C. 408(f) before the infringement began keeps statutory damages and fees if its registration takes effect by the earlier of three months after first publication or one month after the owner learned of the infringement (section 412).
• Which right you own. Under section 501(b), you sue only for the right you hold, and only for infringement while you held it. When ownership of a commissioned piece is unclear, as our page on who owns a music video shows, that question comes before any damages math.
• Notice on recordings. For sound recordings, a proper notice on the published phonorecords the defendant had access to removes the innocent infringement argument the same way section 401(d) does for copies (17 U.S.C. 402(d)).
• Fair use. A fair use is not an infringement at all, judged on the four factors in 17 U.S.C. 107, and our post on legally using copyrighted works explains the doctrine. Separately, the court must remit statutory damages for employees of nonprofit schools, libraries, archives and public broadcasters who reasonably believed their use was fair (504(c)(2)).
• Recordings fixed before February 15, 1972. These are protected under 17 U.S.C. 1401, where statutory damages and fees depend on filing a schedule with the Copyright Office and the use coming more than 90 days after it is indexed, rather than on section 412. Our page on pre-1972 sound recordings has the details.

A worked example

Common mistakes

• Registering months after release. Missing the three-month window after first publication can rule out statutory damages and fees for copying that began in the gap.
• Counting copies instead of works. Statutory damages are set per work infringed, so a thousand copies of one photo made by one infringer still lead to one award.
• Assuming a license lets you sue. A nonexclusive licensee is not an owner of an exclusive right under section 501(b) and the definitions in section 101.
• Letting the evidence disappear. Infringing posts often vanish once a letter arrives, which is why our post on protecting your art with backups and registration urges keeping records early.

What to do this week

1. Find your registration certificate or public record and note the effective date of registration, not the date the certificate arrived.
2. Write down three dates: first publication, the first infringing use, and the day you learned of it. Compare them with section 412 and the three-year limit in section 507(b).
3. Capture the infringement: dated screenshots, URLs, purchased copies.
4. Collect your own numbers: license income, lost sales, and anything that shows the infringer's revenue from the work.
5. If the work is not registered, file now, and consider special handling if a case is likely soon. Our page on how long registration takes compares the options.
6. Decide the first step: a demand letter, the Copyright Claims Board, or a federal suit.

Frequently asked questions

Can you collect both actual damages and statutory damages?

No. Section 504(a) makes the infringer liable for either actual damages and profits or statutory damages, not both. The owner picks one before final judgment.

Are punitive damages available for copyright infringement?

Section 504 lists actual damages and profits, or statutory damages, and does not list punitive damages. The statute's answer to deliberate copying is the willful increase to as much as $150,000 per work, together with possible attorney's fees under section 505.

Can an exclusive licensee sue an infringer?

Yes, for infringement of the exclusive right it holds, committed while it held it (501(b)). The court may require notice to others with an interest in the copyright. Our page on whether a licensee can sue an infringer covers registration and the enforcement terms a license should include.

Can a copyright damages case be filed in state court?

No. Under 28 U.S.C. 1338(a), no state court has jurisdiction over a claim arising under the copyright statute. It may be filed in the district where the defendant or its agent resides or may be found (28 U.S.C. 1400(a)).

Do the same remedies apply when one song copies another?

Yes, the remedies are the same; what differs is the proof of copying. Our page on how courts decide song copying explains what a songwriter has to show before damages come into play.

What if you are the one accused?

The same rules work in reverse: registration dates, notice and the three-year limit can all narrow what the owner may recover. Our page on receiving a copyright infringement demand letter covers what to check first.

Zala IP Law advises songwriters, artists, labels, publishers and other creators on copyright registration and infringement response across the United States. If someone is using your work and you want a clear view of what a claim could recover, request a consultation or call 404-313-1701.