Secondary Copyright Infringement & Proving Legal Liability

Often, an infringement case involves the owner of a copyrighted work and an individual who copied it without permission. However, sometimes a third party enables or supports the infringement. An example might be a store that sells copies of an infringing work or a company that helps market the infringing work. A copyright owner may be able to sue these secondary infringers in some situations, which can expand the remedies that they can receive for the infringement. If an individual infringer does not have the resources to pay a judgment, the secondary infringer may have sufficient resources, since it is usually a larger entity.

The basic elements of a claim against a secondary infringer are similar to the elements of a claim against a primary infringer. You must show that you registered your copyright with the U.S. Copyright Office. (While registration is not required to have a copyright, it is required to bring a lawsuit in federal court to enforce your rights.) You can register a copyright regardless of the quality of the work, as long as it has some token degree of creativity. Once you register, you can sue for any violation of one of the exclusive rights provided by Section 106 of the Copyright Act. These include the right to reproduce (or copy) the work, the right to distribute (or sell) the work, the right to create adaptations (derivatives) of the work, and the right to publicly perform or display a work such as a play, song, movie, painting, or sculpture.

Distinctive Elements of Secondary Infringement

The Copyright Act does not provide an explicit discussion of secondary liability for infringement. However, federal courts have allowed copyright owners to present these theories. Although federal laws are uniform nationwide, federal appellate courts are free to develop separate interpretations of the law, unless the U.S. Supreme Court intervenes to resolve a conflict. The Supreme Court has not yet imposed a uniform test for copyright infringement, so different federal appellate courts have developed different standards for when copyright owners can hold third parties liable for infringement.

There are certain common features among the various tests, though. Most copyright owners will need to show that the third party intentionally or knowingly induced the infringement or provided the primary infringer with the means to commit the infringement. They also probably need to show that the third party received a benefit (such as a profit) from the infringement. For example, the primary infringer might present the infringing work to a store as their own work. If the store recognizes that the work has duplicated the work of the copyright owner, it will be liable for secondary infringement if it agrees to sell copies of the infringing work.

Direct evidence that the third party knew that a work infringed on a copyright is rare. More often, a plaintiff will need to provide circumstantial evidence that their work was sufficiently recognizable in a certain area or industry, such that the third party should have recognized the infringement. However, they would need to present some evidence beyond their own assertion that this is true.

Last reviewed October 2024