Yes, that is relevant evidence to the issue of damages recoverable for copyright infringement. However, as the previous attorney noted, this is a complex issue, and you need legal help to do it right.
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This is a pretty involved question that you are asking here.
For starters, I am really curious if you are involved in copyright litigation without an attorney? If you are, now is a good time to get counsel involved, though if you are dealing with damages, it may be too late to prevent some of the damage already done. Anyways, to your question:
There are two ways that copyright damages are assed:
1. STATUTORY DAMAGES
Statutory damages are available for people/businesses that have the copyrighted work registered. The damage awards usually range from $750-$30,000 per infringement, but awards can be as low as $200 per infringement for ‘innocent infringers’ and up to $150,000 per infringement if infringement occurred ‘willfully’. Statutory damages get their name because they are enumerated in the Copyright Act (17 USC 504).
The plaintiff generally asks for the highest amount of damages possible, and then the court will decide within the above range how much should be awarded.
In you situation, each of the 8,000 sales a month in 2008, along with any other sales that you did count as an infringement. Every sale that you made of the infringing item(s) should count against you, regardless of what website the item was sold from.
You may end up paying for attorneys fees too.
2. ACTUAL DAMAGES.
Actual damages are for people/businesses that do not have the work registered. There are generally two ways that these damages are calculated. One way involves determining what the plaintiff’s average income from their copyrighted work was before (and after) the infringement and compare it to the income from when their work was being infringed. The difference is the Actual Damages. This method is useful if there are extensive financial records to show average sales (generally over a long period of time).
The other method counts the number of infringements that took place and awards damages based on what the copyright owner would have received had she sold or licensed the work to the infringer instead of having it stolen. This method is easier to use when the plaintiff does not have extensive sales records. This still may be difficult, however, because of the problems associated with pricing a work if it has not been commercially sold (e.g. – a piece of original art from an artist’s private collection). What makes claiming Actual Damages more difficult, however, is that the plaintiff must prove to the court that their amount for Actual Damages is accurate.
Either way, you are looking at a lot of work as either the defendant or the plaintiff.
Final point--I hope you are not confusing trademark law with copyright law. If you want to know how trademark law damages are calculated, that is info for an entirely different post.
Seriously, go see an attorney.
I am not your lawyer and this comment does not create an attorney-client relationship. Plus, it is not a good idea to base legal decisions solely on comments posted to an open forum board. However, I hope that you will seek the advice of an attorney if you feel that your situation requires such expertise.
Prior sales, licensing and revenues of a protected work are indeed a factor in calculating copyright infringement damages of that work. In some cases, the compensation history and notoriety of the artist behind the work are also considered.
This content is a discussion of legal issues and general information; it does not constitute legal advice and should not be used as such without seeking professional legal counsel. Reading the content does not create an attorney-client relationship.
As I understand you, you're the plaintiff and you had sales in 2008 and then were infringed in and stopped selling. Yes, the 2008 sales would be a factor in determining actual damages. If you registered your copyright prior to the infringement, then you might want to review statutory damages. Keep in mind 17 USC 505 and the possibility of recovering attorney fees and costs and you may be more likely to use an attorney. Your damages do not appear to be sufficient to justify a copyright infringement suit, which is likely to cost tens or hundreds of thousands of dollars. See a copyright litigation attorney to find out.
I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.