Remember I told you last week that the musician who sued Alex Newtron for copyright infringement probably can't prove any actual harm?
But there is another type of copyright damages the musician can seek. Disgorgement of profits.
Disgorgement is just a fancy lawyer way of saying that Alex has to give up any profits he made from the copyright violation.
How will the musician prove that?
First, he will probably try to subpoena the game's DevEx records, to see how much money Alex has made off the game.
But the musician doesn't get all of the money from the game. He only gets the profits directly attributable to the copyright infringement. And in this case, his song is just one tiny piece of the game.
How does the musician prove what money is attributable to the song?
That's a really tough task. He might try to find an expert to discuss the importance of the song to the game, and then seek some small percentage of the game's revenue, and hope that that's enough to persuade the judge.
But we're probably not talking about much money. My wild guess is that the total damages under a disgorgement theory, if the musician is able to prove anything at all, will be in the range of $10,000.
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