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Resource Author Francisco R. Higueras
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Under the Copyright Act, an infringer of a copyright is liable for either the owner's actual damages and any additional profits of the infringer or statutory damages. It is within the discretion of the plaintiff, or individual seeking to protect his or her copyrighted work, to elect either actual damages or statutory damages.

More often than not, the owner will elect statutory damages where that owner has registered the work with the Library of Congress. The reason for this is that the owner may not be able to establish actual damage to the copyright, to the owner's business, or ill-gotten profits of the infringer in such a way that the total amount is greater than that which is available under the Copyright Act for statutory damages.

That said, it is important to note that courts, within their broad discretion, may look to actual damages suffered when determining what the statutory damages award should be. However, there are limitations within the Copyright Act that control the amount of statutory damages on a minimum and maximum basis. For example, a willful infringement of a registered copyright enables the court to award statutory damages up to a maximum of $150,000. However, where the plaintiff fails to sustain its burden of proving willful infringement, the court may reduce the award of statutory damages to a minimum of $200. Typically, an owner pursuing an infringer will be limited to statutory damages between $750 and $30,000 for the infringement of one work.

In addition, those seeking copyright protection often overlook the fact that a filed copyright pertains to exactly that which was filed. Therefore, when an update is made to a website, ideally a new filing should be made. While a copyright for the original website may offer significant leverage over an alleged copyright infringer, ensuring that the exact copy of the website and material contained therein is subject to a valid copyright registration with the Library of Congress, you will be in an even stronger position to enforce your rights and qualify for statutory damages. While filing every day in order to protect your online work may not be an option, it is often recommended that a filing should occur upon redesigns and major updates.

Finally, filing for a copyright for a website does protect the website and offer some protection to the content. However, having individual copyrights filed for that content, such as a particular photograph, image, or other copyrightable work, is advisable so that there is no question about confusing similarity if the alleged infringer uses only a portion of your website.

With these principles in mind, owners can make educated decisions regarding which works to protect with federal registrations, how often to file such registrations, and whether to file as compilations, understanding that infringement of such compilation will be limited to statutory damages for one work.

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