Damages for copyright infringement

You find one of your photographs on a company’s website without anyone having asked you. Or your text turns up under someone else’s name. Annoying, and it raises a practical question straight away: what is this worth? How much can you claim in damages for copyright infringement, and what does that amount depend on? This page sets out which compensation you can claim, how the court determines the amount and what you may expect in practice.

Want to know straight away what your case is worth? Call 020 675 88 21 or get in contact.

Damages or an account of profits: which do you choose?

With copyright infringement you have two options, and you choose which works out more favourably. You claim compensation for your own loss, or you claim the profits the infringer made from your work. Both at once is usually not possible. Dutch law is there to make your loss good, not to let you collect twice over.

In our practice we find the choice comes down mainly to the figures. Has someone earned substantially from your work? Then an account of profits is often attractive. Where those profits are disappointing, or hard to establish, you fall back on your own loss. We work both routes through for you before a claim is brought.

How is the amount determined?

For your loss the court looks at the position you would have been in without the infringement. That often happens by way of a notional licence fee. The starting point is clear: the licence fee you could have charged if the other party had properly asked permission in advance. The costs you incurred in tracing and investigating the infringement can be added to that.

Do you have a fixed rate, or is there a going price in your field? Then you have a solid anchor. For photographers and other makers, professional bodies also publish guideline rates that a court can use as a benchmark. The better you substantiate your usual fee, the more concrete the loss on the table.

An uplift where your name is missing or your work has been altered

Alongside the ordinary licence fee, the court can award an uplift for moral prejudice. That comes into play particularly where your name did not appear with the work, or where your work was used in altered form. You then miss out on recognition, and that touches your moral rights. In the case law an uplift of 25 per cent is customary, and in some cases it runs up to 50 per cent.

Equally important is what that uplift is not for. Dutch damages law is there to compensate you, not to punish the infringer. Most courts therefore do not award an increase purely because the infringement was deliberate. The value of your exclusivity and of your control over the work is in principle already built into the licence fee. Whether an increased award is justified in a particular case remains, incidentally, a recurring debate in the case law.

What you may expect in practice

There are two things you want to know in advance. In most cases courts award less than the claimant asked for, so a realistic figure works in your favour. And in intellectual property cases a special rule applies to the costs of proceedings. If you lose, you can be ordered to pay the other side’s actual legal fees, rather than the low fixed sum applied in ordinary civil cases.

That cuts both ways. With a strong case you can have your own costs reimbursed. But if, as claimant, you hold out for unreasonable amounts while the other side offers a realistic settlement, the court can reduce those costs. We therefore assess in advance how strong your position is, so that you are not caught out.

One thing always comes first. It must be established that your work is protected by copyright before you can talk about infringement and loss. You can read more about that on our page about copyright law.

Have your case assessed

What your case is worth depends on the type of work, how often and where it was used, your usual rate and whether your name appeared with it. We assess that for you, send the infringer a letter of claim and, where necessary, claim your loss or the profits made. Are you faced with unauthorised use of your work? Do not hesitate to get in contact. Call 020 675 88 21 or send a message, and we will look at the best approach together.