Music Copyright Damages

What can a rights holder claim for unlicensed music?

Four measures come up, and a claim often runs more than one in the alternative.

• The license fee. What the use would have cost had it been cleared. Courts in all four jurisdictions on this page accept it as a measure of loss.
• Lost profits. Sales or deals the rights holder lost because of the infringement.
• The infringer's profits. What the user earned from the use; in the UK this is an account of profits.
• Statutory damages. A US amount per work, set by the court within a range, without proof of loss.

Which measure applies, and whether two can be combined, depends on the jurisdiction. This page explains the framework; it is not legal advice.

How do statutory damages work in the US?

Under 17 U.S.C. § 504(c) a copyright owner can choose statutory damages instead of actual damages at any time before final judgment. The court sets an amount for each work infringed:

• $750 to $30,000 per work in the ordinary case;
• up to $150,000 per work where the infringement was willful;
• as little as $200 per work where the infringer proves it had no reason to believe it was infringing.

Two rules limit this. Statutory damages and attorney's fees are only available if the work was registered before the infringement began, or within three months of first publication (17 U.S.C. § 412). And the statute treats all the parts of a compilation as one work, so the way a court counts works can move the total a long way.

Why is the figure in a claim letter not a valuation?

US claims against brands are often framed around the statutory maximum: the number of works times $150,000. Sony Music's 2024 suit against Marriott alleged at least 931 infringements in social media posts; it was dismissed with prejudice in October 2024 on undisclosed terms. Warner Music's 2025 suit against Crumbl Cookies over 159 works sought up to $150,000 per work; the parties settled in 2026, also on undisclosed terms.

Those figures are the ceiling of what a court could award. They say nothing about what the use was worth, and in every other framework on this page that is the question a tribunal has to answer.

Can the license fee be the measure of actual damages in the US?

Yes. In On Davis v. The Gap, 246 F.3d 152 (2d Cir. 2001), the court held that actual damages under § 504(b) can be measured by the fair market value of the license the infringer should have obtained. The measure is the market value of that license, not the figure the owner says it would have charged, and it has to rest on evidence rather than speculation.

Section 504(b) also lets the owner recover the infringer's profits from the infringement, to the extent they are not already counted in the actual damages.

How do UK courts calculate copyright damages?

The Copyright, Designs and Patents Act 1988 gives a copyright owner the same relief as for any other property right (s.96). Where the owner cannot show a lost sale, the court awards a notional license fee for the use, known as the user principle. In Blayney v Clogau St David's Gold Mines [2002] EWCA Civ 1007 the Court of Appeal confirmed that the user principle applies to copyright and awarded a royalty on the infringing sales.

• Additional damages. Under s.97(2) a court can add damages for the flagrancy of the infringement and any benefit the defendant gained from it.
• Damages or profits. A claimant elects between damages and an account of the infringer's profits; it cannot have both.

What do EU and German law say?

Article 13 of the EU Enforcement Directive (2004/48/EC) lets courts set damages as a lump sum, based on at least the royalties or fees that would have been due had the infringer asked for permission. It applies where the infringer knew, or had reasonable grounds to know, that it was infringing.

German law states the idea directly. Under § 97(2) of the Copyright Act (UrhG), damages can be calculated on the basis of the fee the infringer would have had to pay had it obtained permission: the license analogy, or Lizenzanalogie. German courts also allow the loss to be claimed as concrete damage or as the infringer's profit, and the rights holder chooses between the three.

What does a court do with a license fee in practice?

Eight Mile Style v New Zealand National Party is a published decision that puts a figure on an unlicensed music use in advertising. The National Party used a track based on Eminem's "Lose Yourself" in its 2014 election ads. The High Court awarded NZ$600,000, assessed as what would have been payable had the party licensed the work ([2017] NZHC 2603).

The Court of Appeal reduced the award to NZ$225,000 ([2018] NZCA 596), and the Supreme Court refused leave to appeal in 2019. For the same use, the figure moved by more than half between the two courts.

Where does a license valuation fit in a damages claim?

In each framework above, someone has to put a number on a license that was never agreed. That is a question about the sync market: comparable deals, the media and territory, the term, how prominent the music is and the standing of the artist.

Sync Valuations gives tribunals that evidence, for claimants and defendants, to one standard either side. Sync license quantum explains how the figure is built; For Law Firms sets out what an instruction covers.

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