11th Cir. Pattern Jury Instr. (Civil) 9.30

If you find that [name of plaintiff] has failed to prove [his/her/its] copyright -

infringement claim or that [name of defendant] has proved its affirmative

defense[s] by a preponderance of the evidence, you won’t consider the question of

damages. If you find that [name of plaintiff] has proved by a preponderance of

evidence that [name of defendant] has infringed [name of plaintiff]’s copyright,

and [name of defendant] has not proved a defense, then you must determine

whether [name of plaintiff] has proved damages. [Name of plaintiff] may recover

either its actual damages plus [name of defendant]’s profits attributable to

infringement or, at [name of plaintiff’s] option, statutory damages. A plaintiff may

choose between the two forms of damages after you the jury have made findings as

to each or a plaintiff may elect between the two forms of damages before the jury

makes any findings.

[Read one of the alternatives below, depending on [name of plaintiff]’s

election of remedies. See Annotation.]

[Alternative 1. [N ame of plaintiff] has elected to [seek its actual damages

plus [name of defendant]’s profits attributable to infringement] [seek statutory

damages]: In the next instruction, I’ll define how you must determine the amount

of damages, if any, to award to [name of plaintiff].]

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