Innocent Infringement in US Copyright Law | LegaMart Articles
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Innocent Infringement in US Copyright Law


Copyright is a type of intellectual property that protects the original work of authorship as soon as an author fixes the work in a tangible form of expression. It can also be said to be the complete assigned legal rights given to the originator of an idea or work. Copyright protection seeks to protect the work of the copyright holder. Works to be copyrighted could be paintings, musical compositions, plays, designs, and so much more! Using copyrighted images and music clips not your own on your website or another medium could result in an alleged infringement.

 A copyright infringement is an injury caused to intellectual property. This infringement harms what the law seeks to protect. Copyright Infringement can be defined as the reproduction, distribution or display of any work without the consent of the originator. A copyright infringement is the use of a work without the copyright holder’s consent. 

There are two forms of infringement: primary infringement (direct infringement by the defendant) and secondary infringement (which occurs if someone facilitates another person or group in infringing on a copyright).

Someone who knowingly induces, causes, or materially contributes to copyright infringement can be held liable as a contributory infringer if they knew or had reason to know of the infringement. Courts will determine whether a person or organization is vicariously liable to see whether the superior party (such as an employer) profited from the infringement of the primary or direct infringer and had supervisory authority over the direct infringer.

To enforce copyright, copyright owners typically send a cease and desist letter to the person or entity exploiting an exclusive right. In some cases, multiple cease and desist letters are sent. However, if correspondence fails, the copyright holder may sue in federal district court to enforce their rights. When a copyright is registered with the copyright office, the infringer may have to pay the copyright holder statutory damages and possibly attorneys’ fees. An infringer will also be prohibited from continuing to use the work.

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Article 1, Section 8 of the 1787 Constitution of America stipulated the first copyright provision. It was in 1790 that Congress passed the Copyright Act. 

The most recent statutory body governing copyright laws in the United States is the Copyright Act of 1976. It spelt out the rights of copyright holders and codified the doctrine of fair use. The Digital Millennium Copyright Act is a 1998 United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization. It criminalizes the production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works. Through Creative Commons, America has sought to expand the range of creative works available for others to build upon legally and to share.

Innocent Infringement in the US

Copyright infringement could be an intentional, unintentional or willful infringement. Innocent infringement is one of the most used defences in copyright infringement litigation. Most people use this defence without knowing the ingredients that should be present in the offence committed to being able to employ this defence.

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Often, people mistake unintentional infringement with an innocent infringement, believing that where the infringement was not intentional, they must be innocent infringers.

However, unintentional infringement is a requirement to use this defence. Section 504 provides for this defence when it spells out that the defendant not only “was not aware” that the work infringed the plaintiff’s copyright but also that they “had no reason to believe” that its use constituted infringement.

The US legal authority on this position has found that even unintentional infringers had reason to believe they were infringing where;

  • Work contained a copyright notice
  • Circumstances surrounding the defendant’s acquisition of the work were suspicious (e.g. internet downloading), and 
  • The nature of the work indicated that it likely was copyrighted material.

Statutory Provision for the Defense

Section 504(c)(2) of the Copyright Act covers the defence of an innocent infringement in US copyright law. The section provides that “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.” 

Common Misconceptions of the Defense

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It is easy to develop misconceptions about the defence. Hence, the need to seek advice from a legal professional on issues relating to copyright. Note, however, that innocent infringement in US copyright law covers these misconceptions. 

Many defendants who assert the innocent infringement defence believe it is a defence to innocent copyright infringement liability. This is not true. An innocent infringer is an infringer, nonetheless. The defence only comes into play when calculating statutory damages for the infringement. Section 504(c)(2) rightly covers this.

Another misconception is that the defence applies no matter the damages sought by the plaintiff. However, on innocent infringement in US copyright law, Section 504 does not provide for reducing an award of actual damages if the defendant proves that they are an innocent infringer. Thus, a plaintiff seeking to avoid the availability of the defence should seek an award of actual damages under Section 504(b) instead of statutory damages under Section 504(c).

Innocent infringement in the US copyright law does not give room for this defence where there is a notice of copyright. Section 401(d), 402(d), and 404(a) of the US Copyright Act provides that an innocent infringement defence is barred as a matter of law where the work infringed contains a copyright notice. Even if the copy of the work the defendant obtained did not have a copyright notice (e.g. a pirated or downloaded copy), an infringer is not off the hook just yet. The court will examine whether the infringer has access to an authorized copy of the work with a copyright notice. If not, the court will look at the circumstances the infringer gained access to the document (e.g. internet downloading).

Exceptions of Liability to Innocent Infringement

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We have seen from the common misconceptions regarding innocent infringement that the defence does not remove liability. An infringer is still an infringer.

However, there are scenarios which remove the liability attached to innocent infringement.

  • Instances where the lack of copyright notice misled the infringer; and
  • Instances where the infringing act occurred before the infringer received actual notice of the copyright.

Section 502 of the Copyright Act of the US provides an injunction as the remedy for copyright infringement.

The remedies available in copyright infringement cases are the same as those for all intellectual property (IP) rights infringement. These are:

  1. Injunctions (interim and final)
  2. Damages or an account of profits
  3. Delivery up, destruction and seizure
  4. Declaratory relief
  5. Other interim relief
  6. Costs
  7. Interest


The United States Copyright Office, a part of the Library of Congress, is the official US government body that maintains records of copyright registration in the United States, including a copyright catalogue. It is used by copyright title searchers to clear a chain of titles for copyrighted work.

Copyright basically protect the creator’s rights and provide incentives and economic benefits to the copyright owners. Copyright extends to the literary or artistic works which demand creativity. Get your work copyrighted with the help of lawyers at LegaMart.

The registration of work is not necessary to be eligible for copyright. However, it is often advised to register the work because it serves as evidence in court.

If you have a question on copyright and need clarifications, here on Legamart, you can drop your questions, and we’ll get them answered right away. 

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