Statutory Damages For Image Misuse: What You Need To Know

Photo by Jakob Owens, licensed under CC0

If you use a copyrighted image without purchasing a license or obtaining permission from the creator or copyright owner, you have likely committed copyright infringement. In many countries, if the copyright owner has taken precautions to protect their work, they may be  entitled to statutory damages, which you would be legally required to pay.

Find out more about how statutory damages affect you as an image user, and how to avoid getting into this costly situation.

What are statutory damages?

Statutory damages constitute a legal pathway for image owners to claim compensation for unauthorized use of their work. The amount payable is not necessarily related directly to the actual financial or reputational damages experienced by the copyright owner, nor to the profits gained by the person or company who used the image. In fact, in some cases, it can be significantly more than either.

Learn more about copyrighted images, how to attribute images correctly (and avoid infringement litigation), and what to do if you realize you’ve used an image without permission.

How do they apply?

Statutory damages generally apply to works that have been formally registered at a national copyright office. Professional photographers and image creators register their works as a precaution against copyright infringement; as an image user, you should work on the assumption that the images you use have been registered with an official copyright office.

The US Copyright Office (USCO), for example, is home to the most complete and accurate collection of copyright ownership records in the world. Both US and non-US citizens can register their work with the USCO, and in the case of a US copyright infringement lawsuit, the fact that a work is registered constitutes prima facie evidence of ownership. This significantly bolsters an image owner’s case, making it difficult to question the identity of the owner or the fact of ownership.

Copyright owners who have correctly registered their work at the USCO are entitled to statutory damages of between $750 and $30,000 per work, at the discretion of the court, plus attorney’s fees. In especially egregious cases of willful infringement, courts may award up to $150,000. Image owners also have the option of recovering lost profits.

The penalty may be reduced to $200 per work in cases where you can prove you were unaware of the infringement. Note that it is very difficult to construct such a defence, and rarely successful.

How are statutory damages awarded?

Statutory damages are awarded following a court case. Ultimately, the amount of damages to be paid is down to the discretion of the court in each individual case. In addition, it’s worth considering that things like lost time, court expenses, travel costs, expert fees, and other costs often end up being more expensive than the image itself

A summary of statutory damages by country:

  • USA: $750 to $30,000 per work, plus attorney’s fees. In especially egregious cases of wilful infringement, courts may award up to $150,000. Image owners also have the option of recovering lost profits.
  • Canada: CAD $500 to $20,000CAD in the case of wilful infringement.
  • United Kingdom: The UK doesn’t award statutory damages amounts, but rather determines actual damages based on the infringer’s profits or the creators lost license fees.
  • Australia: There’s no formalized system of copyright protection. Damages depend on whether the offense committed constitutes a summary offense or an indictable offense, determined by the infringer’s intention and state of mind.

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tl;dr

  • If you infringe someone’s copyright, under certain conditions the copyright owner is entitled to statutory damages, which you would be legally required to pay.
  • In some cases, statutory damages exceed the loss of owner’s income and the profit made from using the image.
  • In the USA, statutory damages range from $750 to $30,000 plus attorney’s fees.

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