Stopping the Innocent Infringement Defense

One of the first responses an infringer will have to a copyright infringement claim is that he didn’t know that he was infringing. He therefore will assert the “innocent infringement defense” under 17 USC 504(c)(2), which states in part:

In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.

But it’s not as easy as it appears to prove innocent infringement. As one court explained:

A person doesn’t have to have the “specific intent” to violate the copyright protection to be liable for infringement. Coogan v. Avnet, Inc., 2005 WL 2789311 (D. Ariz. 2005), quoting Atlantic Recording Corp. v. Chan, 94 Fed. Appx. 531, 533 (9th Cir. 2004).  A defendant seeking to establish the innocence of an infringement must not only establish its good faith belief in the innocence of its conduct, it must also show that it was reasonable in holding such a belief.  Peer Intern. Corp. v. Pausa Records, Inc., 909 F.2d 1332, 1335-1336 (9th Cir. 1990).

And even if the infringement is innocent, the infringer is still liable under a strict liability rule:

Innocent intent should no more constitute a defense in an infringement action than in the case of conversion of tangible personalty. In each case the injury to a property interest is worthy of redress regardless of the innocence of the defendant. Moreover, a plea of innocence in a copyright action may often be easy to claim and difficult to disprove. Copyright would lose much of its value if third parties such as publishers and producers were insulated from liability because of their innocence as to the culpability of the persons who supplied them with the infringing material. See 3 NIMMER ON COPYRIGHT § 13.08 at 13-291 (1994).  See also P. GOLDSTEIN, COPYRIGHT § 9.4 at 162 (1989) (“the standard rationale for excluding innocence as a defense to copyright infringement is that, as between the copyright owner and the infringer, the infringer is better placed to guard against mistake”; “the strict liability rule should discipline an infringer, who might otherwise mistakenly conclude that his copying will not infringe the copyrighted work, to evaluate the legal consequences of his conduct more carefully”).

Gener-Villar v. Adcom Group, Inc., 509 F.Supp.2d 117, 125-26 (D.P.R., 2007).

One way to avoid the infringer’s innocent infringement defense completely is to include a copyright notice with your photos.  When you post your copyright notice with your images, then the infringer cannot claim that the infringement was innocent. 17 U.S.C. sec. 401(d) provides:

If a notice of copyright in the form and position specified by this section appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504(c)(2).

The form of the notice should include following three elements:

(1) the symbol © (the letter C in a circle), or the word “Copyright”, or the abbreviation “Copr.”; and

(2) the year of first publication of the work; in the case of compilations or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying text matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful articles; and

(3) the name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.

17 U.S.C. sec. 401(b)

The position of the  copyright notice “shall be affixed to the copies in such manner and location as to give reasonable notice of the claim of copyright.” 17 U.S.C. sec. 401(c).

Further the court is more likely to find that the infringement was willful, supporting the maximum in infringement damages. “Evidence that the infringed works bore prominent copyright notices supports . . . a finding of willfulness.” Castle Rock Entm’t v. Carol Publ’g Group, Inc., 955 F.Supp. 260, 267 (S.D.N.Y.1997).

In sum, posting a copyright notice with your photos is a great way to battle copyright infringement.

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