Can I Sue an Entity That Helped Others Infringe My Copyright?

Is there third party liability for copyright infringement?

By , Attorney

Holders of copyrights have certain exclusive rights over their copyrighted works. For example, a painter with a copyright over her oil painting has the exclusive right to reproduce that image onto posters and sell them in stores. Naturally, if someone comes along and copies the painting without permission to make posters, that person would face liability as an infringer.

But what about the poster-making company? Or the stores that sell the infringing posters? In some situations, copyright law permits the plaintiff (the holder of the copyright) to seek liability against so-called secondary infringers. Learn more about when this type of claim is appropriate.

What Copyright Law Protects

Copyright law protects creators of original works. Those works might be song lyrics, sculptures, paintings, or a host of other potential creations. Holders of copyrights are granted certain exclusive rights, by 17 U.S. Code § 106 of the Copyright Act of 1976. These rights include the exclusive right to reproduce works (make copies), the exclusive right of distribution (that is, the right to sell), the right to create adaptations (derivative or related works), and the right to publicly perform or display the work (for instance, showing a play or painting).

Copyright is automatic once a work is created. However, in order to actually sue for infringement in federal court, your copyright must be registered with the U.S. Copyright Office, the federal agency charged with the administration of copyrights. This is true whether you are suing the "primary" infringer or a "secondary" infringer; registration is a prerequisite.

Your work need not be of high quality in order to receive protection. That is, you can obtain copyright protection over a terrible poem or a bad drawing. The primary hurdle is that there must be some minimal degree of creativity. So, for example, you typically would not be able to obtain a copyright over a list of names or numbers (though such lists might be protectable as trade secrets depending on the nature of their use).

What is Secondary Copyright Infringement

Direct copyright infringement is fairly simple to understand. To establish direct copyright infringement in a lawsuit, a plaintiff must prove ownership of a valid copyright, and a violation of an exclusive right under 17 U.S.C. § 106.

For example, imagine that you own the copyright over a play that you wrote and have a registered copyright proving ownership of. Someone came into your office and took the script and sold it to a production company, which is now producing the show at a local theater without your permission. Clearly, such conduct violates your exclusive rights of public performance and distribution and you could sue the person who took the script.

But what about the theater that hosts the show? Or the production company that executes it? Do they share any of the liability, or can you sue only the single individual who stole your script?

Fortunately, copyright law permits legal claims for secondary infringement in certain circumstances. Although the Copyright Act itself does not specifically describe claims for secondary infringement, courts have held that plaintiffs can still apply theories of secondary liability.

The precise legal tests for finding secondary infringement liability differ among the federal circuits. However, the basic principles are fairly consistent.

Third parties may be held liable for infringement if they

  • knowingly induce or provide others with the means of infringement, or
  • enjoy a benefit from the infringement.

Put differently, if a third-party person or entity knows that infringement is occurring (even if they themselves did not carry out the direct infringement) and somehow contribute to the infringement and benefit from it, then they can share in liability.

Imagine, as in the first example above, that you are a painter. Your paintings are colorful and easily recognizable in your community. Someone comes along and takes a photograph of your painting without permission and manufactures T-shirts with that painting on it. Obviously, that person is liable for copyright infringement. Now imagine that the infringer sells the T-shirts to a local clothing store. The store owner recognizes your artwork, but decides to sell the T-shirts there anyway, believing they will be profitable. Here, you may be able to seek damages against the store as being secondarily liable for infringement.

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