Are Your an Innocent (or Willful) Infringer?

Who creates the content of your organization’s web site, social media pages and mobile apps? Using others’ copyrighted images, text and other materials without permission can lead to liability under the U.S. Copyright Act. The law provides for enhanced penalties against “willful” or knowing infringers, but even innocent infringement can lead to liability.

Many photographers whose images appear online are diligent in enforcing their copyright interests. Getty Images, a leading provider of online images, closely monitors the use of its images and often seeks injunctions and damages against infringers.

Photographer Barry Rosen sent web site owner Stephen Pierson a cease and desist letter about Rosen’s copyrighted photos of actress Gena Lee Nolan being offered for sale online by Pierson. Upon receiving the letter, Pierson requested that his web developer remove the photos from Pierson’s web site. When the photos were not removed, Rosen filed a copyright infringement action against Pierson (available here).

The U.S. District Court for the Central District of California conducted a June, 2013 bench trial. The court found that Pierson was an “innocent” infringer, because he took all reasonable steps to insure that the photos would not be available on his site. He was held liable for only $200 per infringement, rather than the “standard amount of statutory damages [of] $750 – $30,000 per work.”

Keep in mind that the defendant bears the burden of proving that the infringement was innocent, not willful. Proactively avoiding infringement is the best policy.