Copyright and the Damages Guessing Game
An infringement of a copyright can be a significant cause of stress to any owner having poured heart and soul, and usually money, into an end product that has been stolen and used by a third party for free. Whilst actions to stop the third party from using the product further are the first port of call, damages for the infringement are usually not far from the mind.
When assessing damages, the court will generally look at an account of profits (being damages to the level of profits made by the party through the illegal use of the copyright) or damages based on the usual licence fee charged for use (although this does not grant a licence for use). Most owners of copyright do not usually licence the use of their copyright so an assessment of damages based on this rate can be difficult at the outset which highlights the need for swift and effective legal advice.
In cases where it is not possible to show a normal rate of profit or in situations where a party does not have a usual licence fee, it can be difficult to assess the amount of damages that should be payable. In this situation, one is required to adduce evidence to prove a level of damages which would normally be the usual licence fee payable between a willing licensor and licensee. It is important here to bring in comparables.
As any copyright owner can see, in a situation where a usual licence fee is charged, the assessment of damages and the subsequent claim for the same can be relatively straight forward. However, for the enthusiastic artistic or new developing software writer, copyright infringement can be a serious situation and it is important to have a clear and concise assessment of the legal damages payable to protect your position.
Please do not hesitate to contact Nik Roots in our Intellectual Property department on 02089747490 or firstname.lastname@example.org to discuss any intellectual property issues and to ensure your position on your creations is fully protected..