Monetary damages are available for copyright infringement, but it is often difficult to calculate what those
damages are. For example, in the case of On Davis v. The Gap, Inc.
(246 F.3d 152 (2d Cir. 2001)) On Davis made sunglasses and had a copyright on
them. The Gap ran an ad with a model who was wearing On Davis' sunglasses. On
Davis sued for copyright infringement.
On Davis won, but the question was how to calculate damages under 17 U.S.C.
§504. The Court found that a copyright plaintiff must establish
"with reasonable probability the existence of a causal connection between
the infringement and a loss of revenue." The Court considered:
Lost licensing revenue
(assume that the Gap had licensed the use at a reasonable royalty). On Davis suggested:
$2 per image x 250,000
copies of the ad, or
$1 per image x 2,000,000
The Gap argued that On Davis
had once licensed a similar sunglasses for a similar ad for only $50, so
that was a good number.
On Davis probably didn't
lose any sunglasses sales because of The Gaps' infringement.
The Gap made $1.668 billion
that quarter, which was about 10% more than they made the previous
But how much was because of
On Davis' sunglasses? Probably very little. You have to show a reasonable
relationship between the sales and
the infringement. It was way too speculative to guess at how many more
clothing sales were attributed to On Davis' sunglasses in the ad.
Under 17 U.S.C. §412 (and §504(c)), they are only available if the copyright
holder has registered the copyright prior to the
infringement! On Davis had not registered the copyright until after the
ad ran, so no statutory damages were available.
Technically they only have
to have filed before the infringement (or within 3 months of publication)
In the end, the Appellate Court found that a reasonable
royalty that The Gap would likely have paid
for use of the glasses was somewhere close to the $50 that on Davis had
previously licensed their sunglasses for.