Copyright protection exists in any work that is fixed in a tangible medium of expression, even if the work is not registered with the United States Copyright Office. However, if someone tries to infringe on an unregistered copyright — copy the work, sell the work, or perform the work without permission — the unregistered copyright holder’s ability to recover damages is limited.
In the case of an unregistered copyright, damages are limited to those which can be proven; in other words, actual damages. This means that the holder of an unregistered copyright can recover:
Since actual damages is the only thing that unregistered copyright holders can recover when their intellectual property in a creative work is infringed, it is important to take care when making the calculation of the actual damages. Below are a few tips for compiling proven damages on an unregistered copyright.
Proving Losses Often Requires An Accounting
Since creative works are often difficult to value, proving the worth of the infringed-upon work can be tricky. One way to determine the lost value is to have a forensic accountant determine the value of the unregistered copyright before and after the infringement.
Use Sales Values for Previously Sold Similar Works
Another good way to prove damages is to show the past value of similar works by a copyright holder. Prior sales of similar works by the unregistered copyright holder can serve as a benchmark for what the work could have been worth. This is a particularly useful approach for works where the value is difficult to determine. For example, if the work was a painting, and the unregistered copyright holder is in the business of selling his or her paintings regularly, business records or receipts for prior sales of similar type works can be useful in determining actual damages.
Business Records Demonstrate Lost Profits
If the unregistered copyright holder was in the business of producing copies of the work, and the party who is infringing steps in to distribute their own copies of the unregistered work, then the unregistered copyright holder’s business records can be used to demonstrate lost profits. The copyright holder has a history of making sales, and if the amount of unauthorized copies of the work can be determined, a few simple calculations can be performed to arrive at proven damages via lost profits.
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