Artists contact Gluck Law Firm every week asking some version of the same question: "Someone stole my design — how much can I get?" It's the right question to ask before deciding whether to pursue legal action. The answer isn't simple, but it's also not unknowable.
Copyright damages in the United States fall into two categories: statutory damages and actual damages. Which category applies to your case depends almost entirely on one thing — whether you registered your copyright before the infringement began.
The Single Most Important Factor: Registration
Under the Copyright Act, registration with the U.S. Copyright Office is required to file a federal infringement lawsuit. But registration timing does something even more important: it determines whether you can elect statutory damages.
Statutory damages are set amounts that courts can award per infringed work, regardless of what you can prove in terms of actual harm. For unregistered works — or works registered after the infringement began — you are limited to proving actual damages, which requires evidence of what you lost and what the infringer gained. That's harder, and typically results in smaller recoveries.
To access statutory damages, your work must have been registered before the infringement began, or within three months of its first publication (whichever is earlier). If you published a design in January and a brand copied it in March, you need to have registered by April to be eligible for statutory damages.
Statutory Damages: The Numbers
For works that qualify for statutory damages, the Copyright Act provides a range of $750 to $30,000 per infringed work, at the court's discretion. But when the infringement is willful — meaning the infringer knew about the copyright and infringed anyway, or acted with reckless disregard — that ceiling rises to $150,000 per infringed work.
In practice, what does "per work" mean? If a brand stole three of your designs and put them on five different products, courts analyze whether that constitutes one infringement or multiple. The calculation becomes complex, which is why experienced copyright counsel matters — a skilled attorney structures the claim to maximize the number of cognizable infringements.
| Type of Infringement | Statutory Damages Per Work |
|---|---|
| Standard infringement | $750 – $30,000 |
| Willful infringement | Up to $150,000 |
| Innocent infringement (infringer did not know) Rarely applies to commercial use |
As low as $200 |
| Attorney's fees Available when work is registered pre-infringement |
Recoverable from defendant |
The attorney's fees provision deserves emphasis. When your work is registered pre-infringement, you can recover your attorney's fees from the other side if you prevail. This provision is enormously powerful — it allows attorneys to take cases on contingency that might otherwise be economically difficult, and it changes the calculus for defendants who know they may be paying both sides' legal bills.
Actual Damages: When Work Isn't Registered
If your work was not registered before the infringement — or was registered too late — you are limited to actual damages. These consist of two components:
1. Your actual losses: What would you have charged for a license to use your work in the way the infringer used it? This is called your "hypothetical license" value — essentially, what the market would bear for that use. For a major brand campaign, this could be tens or hundreds of thousands of dollars. For a small commercial use, much less.
2. The infringer's profits: Under 17 U.S.C. § 504(b), you can recover the profits the infringer made from the unauthorized use, to the extent those profits are not already captured by your lost license value. The infringer has the burden to prove which portions of their profits are attributable to factors other than your work.
Actual damages cases require more work — you need evidence of the infringer's revenues, the market rate for the type of use at issue, and ideally expert testimony on valuation. They're absolutely worth pursuing in the right circumstances, but they typically settle for less than registered-work cases with full statutory damages available.
What Do Real Settlements Look Like?
Settlement values vary enormously based on the facts. Here is a representative sample of matters handled by Gluck Law Firm:
Artwork used commercially without license across a major brand's social media and print campaigns for over two years. Registered work, willful infringement, nationwide reach.
Artist's murals used in a national advertising campaign across multiple media channels without permission or compensation. Multiple works, extended use period.
Artist's graphic design reproduced on apparel by a major retail chain. Case resolved pre-trial. Registered work, significant retail distribution.
Artist's graffiti artwork used in social media advertising without permission. Shorter duration, digital-only use — illustrating that cases without physical product distribution still carry substantial value.
The Five Factors That Determine Your Case Value
When evaluating a copyright infringement case, an experienced attorney looks at five key variables:
1. Registration status and timing. Pre-infringement registration unlocks statutory damages and attorney's fees — the two most powerful tools in copyright litigation. Late registration significantly limits recovery.
2. Scale and duration of infringement. A design used in a national TV campaign for two years is worth far more than the same design used on one product for one month. The infringer's revenue attributable to your work is a key number.
3. Willfulness. Did the infringer know about your work before copying it? Did you have prior contact, a prior licensing relationship, or credit given elsewhere? Evidence of willfulness pushes statutory damages toward the $150,000 ceiling.
4. The identity of the infringer. A Fortune 500 company has significantly different settlement dynamics than a small business. Larger companies have more to lose reputationally, often have insurance, and have the resources to pay. They also have sophisticated legal teams — which means you need sophisticated legal representation.
5. Quality of evidence. How well documented is the infringement? Do you have clear evidence of copying, not just similarity? Is there a paper trail showing the infringer had access to your work? Strong evidence produces stronger settlements.
What About Cases That Don't Settle?
The vast majority of copyright infringement cases — well over 90% — settle before reaching trial. This is a feature, not a bug. Settlement provides certainty, speed, and avoids the uncertainty of a jury verdict. But not every case settles on acceptable terms, and the credible ability to litigate is what creates settlement leverage.
When cases do reach trial, juries historically award significant damages in willful infringement cases. The threat of a jury trial — and the reputational exposure that comes with it — is often what moves major brands toward settlement. The lesson: your attorney needs to be someone defendants take seriously as a trial threat.
Frequently Asked Questions
Does the size of the company matter?
Yes and no. The law applies equally regardless of the infringer's size. But a major retailer's ability to pay — and their reputational sensitivity — does affect settlement dynamics. Larger infringers sometimes result in larger recoveries, but small companies can also be worth pursuing depending on the facts.
What if they used my work without knowing it was protected?
Copyright exists automatically upon creation — there is no requirement to register or display a copyright notice for copyright to exist. "We didn't know" is generally not a complete defense. However, it can affect the willfulness analysis, which in turn affects the statutory damages range.
Can I get money even if my case settles without a lawsuit being filed?
Yes. Many cases resolve through negotiation after a demand letter — no lawsuit required. Settlement amounts in pre-suit negotiations can be substantial, particularly when the infringement is clear and the work is registered.
How much does the attorney take in a contingency arrangement?
Contingency fees typically range from 33% to 40% of the recovery, depending on the stage at which the case resolves. The specific percentage should be clearly set forth in your engagement agreement before you sign. Make sure you also understand how litigation costs are handled separately from attorney's fees.