Innocent Infringement: Intent and Copyright Law

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition

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.

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