Copyright Infringement Damages: Actual, Statutory, and Fees

If someone infringes your copyright, federal law lets you recover money under one of two tracks: actual damages plus the infringer’s profits, or statutory damages ranging from $750 to $150,000 per work. You may also recover attorney fees and court costs, and you can ask the court to order the infringement stopped. Which remedies are actually available to you turns on one thing more than any other: whether you registered the work with the U.S. Copyright Office in time.¹

You Choose One Track, Not Both

Federal law forces an election. You can pursue actual damages and the infringer’s profits, or you can take statutory damages instead. Not both. The choice can be made any time before final judgment, so you have room to see how the evidence develops before locking in.²

The practical logic: if you have strong proof of lost revenue and the infringer made real money, actual damages plus profits can exceed statutory awards. If the financial picture is fuzzy, statutory damages give you a guaranteed floor without needing to reconstruct exact losses.

Actual Damages and the Infringer’s Profits

Actual damages compensate you for the financial harm the infringement caused. The measure most courts use is what a willing buyer would reasonably have paid a willing seller for a license covering the actual use the infringer made. Prior licensing agreements for the same work, comparable licenses in your industry, and expert testimony on fair market value all support this calculation. Speculation does not. Courts reject damage claims built on guesswork.³

On top of your losses, you can recover the infringer’s profits from using your work, as long as those profits are not already counted in the actual damages figure. The burden allocation favors you: you only have to prove the infringer’s gross revenue tied to the infringing activity. From there, the infringer has to prove which expenses to deduct and which portion of the profits came from factors other than your work.²

What the Infringer Can Deduct

The infringer can reduce the profit figure by showing legitimate business costs tied to producing the revenue. Direct production costs count. Overhead counts only when the infringer shows it actually contributed to producing or selling the infringing product. For non-willful infringers, income taxes and management fees paid on the infringing profits may also qualify. Paper losses like net operating loss carryforwards do not, because they have no concrete financial impact.⁴

Splitting Profits Between Your Work and Other Elements

When the infringing product also draws revenue from things unrelated to your work — the infringer’s own brand, marketing, or original contributions — the infringer bears the burden of separating those profit streams. Precision is not required, but if the infringer cannot show which profits came from non-infringing factors, the court attributes all of the profits to the infringement. Doubts resolve in the copyright owner’s favor.⁴

Statutory Damages

Statutory damages exist because proving exact financial harm is often impractical. A photographer whose image gets used across dozens of websites may have no licensing history and no way to trace lost sales. Statutory damages skip that problem by letting the court award a set amount per work infringed.

The standard range is $750 to $30,000 per work, at the court’s discretion.² The floor and ceiling shift based on the infringer’s mental state:

Willful infringement pushes the ceiling up to $150,000 per work. You must prove the infringer knew what they were doing was infringement or acted with reckless disregard.⁵
Standard infringement stays in the $750 to $30,000 range, with the judge weighing the severity and scope of the unauthorized use.
Innocent infringement drops the floor to $200 per work, if the infringer proves they had no reason to believe their conduct was infringing.²

Each infringed work generates its own statutory award. Copy five of your photographs, and you may collect five awards. But all parts of a compilation or derivative work count as a single work, so copying ten songs from one album does not automatically produce ten awards.²

Copyright Notice Cuts Off the Innocent Infringer Defense

Placing a proper copyright notice on published copies of your work has a real litigation payoff. When the defendant had access to copies bearing a valid notice, the court gives no weight to a claim of innocent infringement.⁶ That effectively blocks the infringer from dropping statutory damages below the $750 floor. Notice has not been legally required since 1989, but this is a good reason to keep using it.

Complete Remission for Certain Nonprofit and Public Broadcasting Uses

Courts must eliminate statutory damages entirely when the infringer is an employee of a nonprofit library, archive, or educational institution acting within their duties, or a public broadcasting entity, and the infringer reasonably believed the use qualified as fair use. This is narrower than the general innocent infringer reduction: it applies only to these specific actors and only with a genuine fair use belief.²

Registration Timing Decides What You Can Collect

Statutory damages and attorney fees are available only if you registered the work before the infringement began, or within three months after the work was first published.¹ Miss that window and you are limited to actual damages and profits, which require the kind of financial proof many creators do not have.

Electronic registration with the Copyright Office costs $45 for a single work by one author (not made for hire) or $65 for a standard application covering other situations.⁷ Given the gap between $200 and $150,000 per work, timely filing is one of the highest-return steps a creator can take.

Attorney Fees and Court Costs

Federal courts have discretion to award reasonable attorney fees to the prevailing party. The statute does not favor plaintiffs; a defendant who defeats an infringement claim can also recover fees from the person who sued them.⁸ The Supreme Court has held that prevailing plaintiffs and defendants must be treated equally when courts exercise this discretion.⁹

Fee awards are not automatic. Courts weigh whether the losing side’s position was frivolous or objectively unreasonable, what motivated the litigation, and whether an award would serve compensation and deterrence.⁹ A reasonable losing position may escape a fee award; a baseless claim or an indefensible defense often will not. As with statutory damages, the ability to recover fees depends on timely registration. Court costs, such as filing fees and transcript costs, are also recoverable at the court’s discretion.⁸

How Long You Have to Sue, and How Far Back Damages Reach

You have three years from when your claim accrues to file a civil copyright infringement lawsuit.¹⁰ In many federal circuits, accrual runs from when you discovered the infringement or reasonably should have discovered it, not necessarily when it first occurred.

A 2024 Supreme Court decision confirmed that once your suit is timely, you can recover damages for infringement that happened more than three years before you filed. The Copyright Act’s remedial provisions contain no separate time limit on how far back the money can reach.¹¹ For creators who only recently learned of older infringement, that significantly expands what you can collect.

The Copyright Claims Board for Smaller Cases

Federal litigation is expensive, and many infringement disputes are not big enough to justify the cost. The Copyright Claims Board is a tribunal inside the Copyright Office that handles infringement claims, declarations of noninfringement, and misrepresentation claims under the DMCA takedown process.¹²

The tradeoff is lower ceilings. Total recovery in a single CCB proceeding cannot exceed $30,000. Statutory damages for timely registered works are capped at $15,000 per work; works that were not timely registered are limited to $7,500 per work with a $15,000 cap per proceeding.¹³ The CCB generally does not award attorney fees unless a party acts in bad faith, and even then the fee award is capped at $5,000.¹²

You can file a CCB claim with a pending registration application; you do not have to wait for the Copyright Office to finish processing it. If the registration is later refused, the CCB dismisses the claim without prejudice.¹² One wrinkle matters: the other side can opt out within 60 days of being served, which ends the CCB case and leaves federal court as your only option.¹⁴

Stopping the Infringement Itself

Money is not the only remedy. Courts can issue injunctions ordering the infringer to stop using your work, and those orders are enforceable nationwide.¹⁵ A court can also order the impoundment of infringing copies while the case is pending, and the destruction of those copies as part of a final judgment.¹⁶ For many creators, shutting down the unauthorized use matters as much as the check.

1
Office of the Law Revision Counsel. 17 U.S.C. 412 – Registration as Prerequisite to Certain Remedies for Infringement
2
Office of the Law Revision Counsel. 17 U.S.C. 504 – Remedies for Infringement: Damages and Profits
3
Ninth Circuit Court of Appeals. Copyright – Damages – Actual Damages
4
Ninth Circuit Court of Appeals. Copyright – Damages – Defendant’s Profits
5
Office of the Law Revision Counsel. 17 U.S. Code 504 – Remedies for Infringement: Damages and Profits
6
Office of the Law Revision Counsel. 17 U.S.C. 401 – Notice of Copyright: Visually Perceptible Copies
7
U.S. Copyright Office. Fees
8
Office of the Law Revision Counsel. 17 U.S.C. 505 – Remedies for Infringement: Costs and Attorney’s Fees
9
Justia. Fogerty v. Fantasy, Inc.
10
Office of the Law Revision Counsel. 17 U.S. Code 507 – Limitations on Actions
11
Legal Information Institute (LII). Warner Chappell Music, Inc. v. Nealy
12
Copyright Claims Board. Frequently Asked Questions
13
Office of the Law Revision Counsel. 17 U.S.C. 1504 – Permissible Claims, Counterclaims, and Defenses
14
Copyright Claims Board. I’m Not Sure If I Want to Participate
15
Office of the Law Revision Counsel. 17 U.S.C. 502 – Remedies for Infringement: Injunctions
16
Office of the Law Revision Counsel. 17 U.S.C. 503 – Remedies for Infringement: Impounding and Disposition of Infringing Articles