Page 105 - Intellectual Property Disputes

prior versions of the copyrighted material, the court ruled that there was a sufficient basis for the damage
award. fn 168

The reasonable royalty may take the form of a lump sum representing the reasonable value of the work.
Alternatively, the royalty may be a percentage of the licensee’s profits. In On Davis v. The Gap, Inc., the
court determined that a copyright owner’s loss of a reasonable royalty or license fee to which a willing
buyer and a willing seller would have agreed may serve as its "actual damages" supporting recovery
under the Copyright Act. fn 169

A defendant may attempt to distinguish pre-existing licenses based on any differences between those
licenses and the hypothetical license, including (a) the types of uses that they authorized; (b) the amount
of the copyrighted work that was used; and (c) the changing value of the copyrighted work over time.

fn 168 McRoberts Software, Inc. v. Media 100, Inc., 329 F.3d 557 (7th Cir. 2003).

fn 169 On Davis v. The Gap, Inc., 246 F.3d 152 (2d Cir. 2001).

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