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.
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.
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.
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.
"Our company has worked with a number of patent attorneys and were so pleased when we began working with Parsons & Goltry nearly a decade ago. Mike Goltry's knowledge and attention to detail has enabled us to have numerous products patented and trademarks registered. We highly recommend this Law Firm."
"Michael Goltry is the most professional, honest and effective patent attorney whom I ever met in my 40 year professional engineering career. I started to work with him over 20 years ago and plan to work indefinitely."
"Mr. Goltry took a provisional patent that we'd filed ourselves, and quickly and professionally turned our innovation into U.S. and foreign applications. His [patent claims] were a thing of beauty, and I was amazed by how deftly he countered the inevitable office actions. His language held up, and the U.S. Patent just issued. He was easy and efficient to work with, and his fees were remarkably reasonable. We're not planning to go anywhere else, ever."
"I applied for a patent through Parsons & Goltry. After being on the docket for 2 years at the USPTO, I received notification that my patent request had been denied. Michael Goltry contacted me immediately to review my options. After I informed him of my decision to move forward, he filed a response to the USPTO. In his response he got the examiner to fully understand the claims in the patent application and the "denied" decision was reversed. I was able to secure and receive a "patent granted" decision. Thank you, Michael Goltry."
10643 North Frank Lloyd
Wright Blvd. Suite 201
Scottsdale, AZ 85259
Phone: (480) 991-3435
Open 9-5pm Monday - Friday
Arizona’s premiere patent attorneys serving clients throughout the U.S. and internationally for almost 30 years.
Located in Scottsdale, Arizona, we serve clients locally as well as throughout the United States and across the world.