Remedies

• Author: Robert A. Gorman
• Profession: University of Virginia School of Law
• Pages: 108

Injunctive relief, both temporary and final, is commonly issued in copyright actions, and is expressly provided for in section 502 of the 1976 Copyright Act. It is commonly held that once the plaintiff establishes a prima facie case of a valid copyright and its infringement, irreparable injury will be presumed and a temporary injunction will issue.188.

The court may also order, pursuant to section 503, the impounding and the reasonable disposition (including the destruction) of all infringing copies and phonorecords and of the devices used to manufacture them.

Perhaps the most intricate, and most important, remedial section of the statute is section 504, which spells out in detail the circumstances under which damages and profits may be awarded. The act provides for the award of either actual damages and any additional profits, or what are known as statutory damages.

In order to dispel the confusion that had existed under the 1909 Act regarding the possible duplicative award of actual damages and profits, section 502 of the 1976 Act now provides:

The copyright owrner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infinger that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or'her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

The principal purpose of the statutory provision is to avoid doublecounting in the computation of monetary remedies. Thus, if the copyright owner marketed its copyrighted wares only east of the Mississippi River at a profit of $1 per unit, and the infringer marketed its infringing wares from coast to coast at a profit of 50 cents per unit, a court should award damages measured by the loss of $1 for each of the plaintiff's displaced east-region sales and the infringer's profits measured by 50 cents for each of the west-region sales. A frequently used measure of the plaintiff's damages is the reasonable value that the defendant would have paid for a license to use the copyrighted material legally. It is, of course, frequently difficult to determine which of the defendant's sales should be treated as causing a direct economic loss to the plaintiff (i.e., damages)

and...