Guides · Copyright Litigation
Copyright Remedies
A copyright owner may recover its actual damages plus the infringer's profits not already counted, or instead elect statutory damages of $750 to $30,000 per work, up to $150,000 if willful.
· Law checked through October 21, 2026
In Short
Courts may also order an injunction, impoundment, and destruction of infringing copies. Attorney's fees are discretionary, but in the Fifth Circuit they are "the rule rather than the exception." Statutory damages and fees both depend on timely registration.
Common situations.
- A photographer's image was used for two years in an online ad campaign.
- A software infringer earned large revenue from a product that includes some copied code.
- A defendant that won on fair use asks for its fees.
- A plaintiff with a late registration must prove actual damages.
The remedies at a glance.
| Remedy | Rule | Source |
|---|---|---|
| Injunction | Temporary and final injunctions on reasonable terms, under traditional equitable principles | 17 U.S.C. § 502; eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) |
| Impoundment and destruction | Of infringing copies and the means of making them, during the case and in the final judgment | § 503 |
| Actual damages and profits | The owner's losses plus the infringer's profits not already counted | § 504(b) |
| Statutory damages | Instead of actual damages and profits, at the owner's election | § 504(c) |
| Costs and attorney's fees | In the court's discretion, to either side | § 505 |
Actual damages and profits.
- Actual damages. Lost sales, lost license fees, or the fair market value of a license for the use the infringer made.
- Profits. The owner must prove only the infringer's gross revenue; the infringer must prove its deductible expenses and the share of profit attributable to factors other than the copyrighted work (17 U.S.C. § 504(b)). Courts, including in the Fifth Circuit, require that the revenue the owner points to be reasonably related to the infringement, not the infringer's total revenue.
- No double counting. Profits are recoverable only to the extent they are not already counted in actual damages.
Statutory damages.
| Situation | Range per work | Source |
|---|---|---|
| Ordinary infringement | $750 to $30,000, as the court or jury considers just | 17 U.S.C. § 504(c)(1) |
| Willful infringement, proved by the owner | Up to $150,000 | § 504(c)(2) |
| Innocent infringement, proved by the infringer | As low as $200 | § 504(c)(2) |
| Certain nonprofit educational institutions, libraries, archives, and public broadcasters acting in good-faith belief of fair use | Court must remit statutory damages | § 504(c)(2) |
There is one award per work, no matter how many times it was infringed, and all parts of a compilation or derivative work count as one work (§ 504(c)(1)). An infringer cannot claim innocence if a proper copyright notice appeared on the published copies to which it had access (§ 401(d)). Either side may demand a jury on the amount (Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998)). Statutory damages are unavailable if registration was not timely under § 412. See Ownership, Registration, and the Right to Sue.
Attorney's fees.
- The standard. Fees may be awarded to a prevailing plaintiff or a prevailing defendant on the same terms (Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)). Courts give substantial weight to the objective reasonableness of the losing party's position, while considering all relevant circumstances, including frivolousness, motivation, and the need for compensation and deterrence (Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197 (2016)).
- The Fifth Circuit. An award of fees to the prevailing party is "the rule rather than the exception" and should be awarded routinely, although it is not automatic (McGaughey v. Twentieth Century Fox Film Corp., 12 F.3d 62 (5th Cir. 1994); Positive Black Talk Inc. v. Cash Money Records Inc., 394 F.3d 357 (5th Cir. 2004)).
- Registration. Fees are unavailable when § 412 bars them.
- Examples. The Fifth Circuit affirmed fees for a school district that won on fair use (Bell v. Eagle Mountain Saginaw Indep. Sch. Dist., 27 F.4th 313 (5th Cir. 2022)).
Criminal liability.
Willful infringement for commercial advantage or private financial gain, or above certain value thresholds, can also be a federal crime (17 U.S.C. § 506; 18 U.S.C. § 2319).
Sources.
- 17 U.S.C. §§ 401(d), 412, 502-506.
- 18 U.S.C. § 2319.
- eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006).
- Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998).
- Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994).
- Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197 (2016).
- McGaughey v. Twentieth Century Fox Film Corp., 12 F.3d 62 (5th Cir. 1994).
- Positive Black Talk Inc. v. Cash Money Records Inc., 394 F.3d 357 (5th Cir. 2004).
- Bell v. Eagle Mountain Saginaw Indep. Sch. Dist., 27 F.4th 313 (5th Cir. 2022).
This guide is general information, not legal advice. Law checked through October 21, 2026. See the Disclaimer.