Proper Copyright Notice bars an “innocent infringer” defense

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Posted by John E Grant on February 26, 2010

I've long advised clients about the importance of including proper notice on their works. As a practical matter, you should do everything in your power to make it easy for someone to get in touch with you for permission (and payment) to use your copyrighted material. As a matter of law, however, proper notice—especially when you also embed it in your metadata—gives you some important legal tools. Yesterday the 5th Circuit Court of Appeals issued an opinion that elaborates on one of those tools: the ability to foreclose "innocent infringement" claims by unauthorized users of your work.

The so-called innocent infringement defense isn't technically a defense since the claiming party is still held liable for infringement. Instead, it is a means for that party to get its damages reduced to as low as $200 per infringement (down from the normal $750 minimum for statutory damages). To successfully claim innocent infringement, the defendant must show that (1) it did not know and (2) had no reason to suspect that the infringed-upon work was copyright protected.

But sections 401(d) and 402(d) of the Copyright Act foreclose any use of the innocent infringer defense when the copyright holder originally publishes its work with proper copyright notice.

The form of the notice is important. The Act defines proper notice as follows:

Form of Notice.— If a notice appears on the copies, it shall consist of the following three elements:

(1) the symbol © (the letter C in a circle), or the word “Copyright”, or the abbreviation “Copr.”, or for sound recordings, the symbol ℗ (the letter P in a circle); 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.

Yesterday's court opinion held that when proper notice is used, it provides "absolute protection" against the innocent infringer defense. Even when the infringer did not know that the work was protected or that it was published with proper notice, "the plain language of the statute shows that the infringer's knowledge or intent does not affect its application. Lack of legal sophistication cannot overcome a properly asserted § 402(d) limitation to the innocent infringer defense."

The case is Maverick Recording Co. v. Harper, --- F.3d ----, 2010 WL 653322 (5th Cir., 2010), and the full-text opinion is available from Technasauruslex.

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