By Robert Gerber and Michael Murphy
Recent cases reveal that seeking a reasonable royalty as a copyright remedy can be an uncertain endeavor. Courts have differed regarding which evidentiary factors are relevant and necessary. Parties seeking to apply the reasonable royalty analysis frequently used in the patent litigation arena have sometimes found themselves successful, and other times frustrated. A study of the development of the reasonable royalty remedy in copyright cases suggests that a party seeking a reasonable royalty needs to pay particular attention to developing a thorough evidentiary basis, and should also research the individual court as much as possible to determine how best to present its case. For parties seeking to avoid a reasonable royalty remedy, case law suggests lines of attack and ways to potentially limit the size of a royalty.
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