Innocent Infringement: Intent and Copyright Law

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition
Contact

One of the most commonly misunderstood aspects of copyright law is the significance of intent. The elements of direct copyright infringement are (1) the plaintiff’s ownership of a valid copyright in a work and (2) the defendant’s copying of protectable expression from that work.  The defendant’s intent is not part of this analysis. One hears the term “innocent infringer” thrown around, but this moniker is of far less value than is often imagined.

Take, for example, sculptor Robert Davidson’s recently-filed case against the US Postal Service (USPS) in the Court of Federal Claims.  The USPS licensed a photograph of the Statue of Liberty from Getty Images and used the photo on about 4 billion stamps. Unfortunately, owing either to a labeling error by Getty or a misunderstanding by the USPS staff, the image used was not in fact of the Statue of Liberty, but of Davidson’s allegedly “sexier” version that stands outside a hotel in Las Vegas. Nobody is seriously arguing that the USPS knew it was infringing when it created the stamp, or was otherwise morally culpable.  But because there is no intent requirement for copyright infringement, the USPS may still be on the hook.

However, even though “innocence” is not a complete defense, the state of mind of the defendant can still matter in a variety of ways in copyright law.  Some of the most important are:

Statutory Damages: In cases where the plaintiff elects statutory damages and where the defendant was not aware that the accused activity was an infringement, the court may lower  the minimum range of statutory damages from $750 to $200.  Conversely, where there is evidence that the infringement was committed willfully, the court may raise the maximum statutory damages from $30,000 to $150,000.

Contributory Infringement: A party who, with knowledge of the infringing activity, induces, causes or materially contributes to infringing conduct may be held liable as a contributory infringer. The knowledge element of this theory formed the basis for the Supreme Court’s landmark decision in Sony Corp. v. Universal.  In that case, the court held that, because the VCR had substantial non-infringing uses, Sony’s distribution of the product was not sufficient evidence of its intent to induce infringement. Additionally, the Digital Millennium Copyright Act limits the secondary liability of an internet service provider to instances in which it has actual or constructive knowledge of infringement by its users.

Fair Use: Intent can surface in a number of ways in the context of a fair use analysis, particularly with regard to the first factor, the purpose and character of the use. Many courts have held  that, because “fair use presupposes good faith,” the defendant’s bad acts or bad motives are relevant to and can defeat a claim of fair use. For example, in Harper & Row, Publishers, Inc. v. Nation Enterprises , the Supreme Court held that that the defendant’s knowledge that the work it reproduced was obtained through theft was a factor weighing against fair use.

Discretionary Acts: The demonstrated intent of the defendant is of legitimate and often dispositive significance to a judge’s discretionary determinations, such as the grant of an injunction and the award of attorneys’ fees.

Criminal Prosecution for Infringement: As with all criminal offenses, there is a mens rea requirement for criminal copyright infringement. The government must prove, in addition to the elements of civil infringement, that the defendant “willfully” infringed.

Insurance: Some commercial general liability insurance policies, as well as more specialized policies, may cover the costs of copyright infringement disputes. However, these policies may also include exclusions for intentional or willful acts.

In the case of the USPS stamp, Davidson’s complaint contains at least a hint as to how intent may be relevant to his claims.  By alleging that the USPS intentionally continued to use the infringing image even after it learned of the error in 2011, Davidson may be setting up an argument for heightened statutory damages or for a grant of attorneys’ fees.  He may also be anticipating a fair use defense.  As of this writing, the USPS has not yet filed a responsive pleading.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Foley Hoag LLP - Trademark, Copyright & Unfair Competition | Attorney Advertising

Written by:

Foley Hoag LLP - Trademark, Copyright & Unfair Competition
Contact
more
less

Foley Hoag LLP - Trademark, Copyright & Unfair Competition on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!