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Infringed Copyright Holders – Big and Small – Can Get Relief

Hardly a day goes by when copyright infringement isn’t in the news. In past years, for example, a couple of music industry heavyweights were charged with plagiarism. The family of Marvin Gaye took pop star Robin Thicke and his co-writers of the hit “Blurred Lines” to court for plagiarizing the late soul singer. And 2015 Grammy winner Sam Smith settled with musician Tom Petty after the latter accused Smith of borrowing from one of his songs.

Your clients may not be rock stars, but if their copyrighted assets are infringed, they’re entitled to seek damages from the infringer. A damages expert can help ensure they recover what’s appropriate.

Recovering lost profits

Many copyright holders elect to pursue actual damages against infringers, which are commonly measured by lost profits. Courts have applied several different approaches to compute such losses. For example, the plaintiff may allege that, if not for the infringement, its sales of the protected work would have grown in an amount equal to the infringer’s sales. However, the copyright holder must show that the infringer’s products are comparable to its own, such as in terms of price, customers, distribution, packaging and advertising.

A plaintiff could also claim that it lost customers to the infringer and, if not for the infringer, those customers might have purchased from the plaintiff. When this type of argument is made, courts consider comparability, especially in the customer base, as well as other factors affecting customers’ decisions.

Another approach involves sales records. If a plaintiff has records of its projected and actual sales from previous financial periods, it could establish an historical correlation between the figures that would support the use of sales projections to measure lost sales. Sales of different products also can reflect lost sales. The sales of these products during periods of both infringement and noninfringement could establish benchmarks for projecting the product mix relationships in the absence of the infringement.

Other factors

Several other factors bear on actual damages. For example, after the amount of lost sales is determined, a deduction must be made for the costs and expenses that the copyright holder would have incurred to generate those sales. Conversely, the holder’s lost interest or earnings on the lost sales may be added to the amount.

Multiple approaches work

There are multiple approaches to recover damages due to an infringed copyright, and this could increase the likelihood of recovering appropriate damages in these types of actions. Copyright holders aren’t limited to financial damages as a remedy. In some circumstances, they may want to seek equitable relief, including injunctions and impoundment of infringing items.

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