Statutory Damages in Copyright Law: A Remedy in Need of Reform

Intellectual Property and Copyright and Trademark

Article Snapshot


Pamela Samuelson and Tara Wheatland


William and Mary Law Review, Vol. 51, pp. 439, 2009


This paper explains why damages awarded in copyright cases are often unfair.

Policy Relevance

Courts' awards of statutory damages in copyright cases are extremely inconsistent and sometimes far too high. Courts must be more careful to avoid error and unfairness. Congress could help by clarifying the law.

Main Points

  • In copyright cases, actual damages can be hard to prove, so copyright law lets copyright owners choose to get an amount set by law instead. This is called “statutory damages.”

  • The law sets statutory damages anywhere between $750 and $150,000 per work, but otherwise gives little guidance. Cases are wildly inconsistent and awards can be grossly excessive.

  • Arbitrary and excessive awards such as these are likely to violate basic principles of fairness recognized in the Constitution’s due process clause.

  • Congress’s intent in creating the statutory damages was partly to give the courts discretion to punish egregious offenders in a few cases (damages were expected to tend toward the maximum), and partly to provide a reasonable substitute for actual damages in most cases (damages should tend toward the minimum).
    • Courts can ameliorate the problem by keeping these two purposes separate in their minds and following other rules of thumb we describe.

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