Innocent Infringement: Responding to Copyright Infringement Cease and Desist Letters

​Innocent infringement is a common, though misunderstood, response when your business or nonprofit is accused of copyright infringement. Perhaps you’ve received a cease and desist letter demanding what seems like an exorbitant fee because of a picture posted on your website or music used in a social media campaign. Maybe you’ve even responded to the letter and pointed out your “innocence” and removed the offending content.
 
But is that enough to really solve the problem and settle the matter? In most cases, no.

What is innocent infringement?
As the name implies, innocent infringement covers situations where you can prove that you were “not aware and had no reason to believe that [your actions] constituted an infringement of copyright.” But even if you are successful in establishing your “innocence,” you are still liable for copyright infringement. The court just has the “discretion” to reduce the amount of statutory damages* you must pay, from the usual range of $750 - $30,000, to as little as $200. In addition to damages, the court can also order you to pay the copyright holder’s attorneys’ fees and court costs despite your claim of innocence.
 
A common example of innocent infringement that we often see with small businesses and nonprofit organizations is assuming that a photo that was found online without any copyright notice must be free to use. In this case, you may be able to argue that without a copyright notice on the photo, you and your team had no way of knowing that your use of the photo was infringing on someone else’s copyright. (Incidentally, if you are an artist, musician, or simply someone who creates content for your small business or nonprofit, this is a very good reason to include a copyright notice on all of your materials.)
 
Your innocence argument could be even stronger if you can show that you weren’t using the photo in question for commercial purposes or that the copyright holder hadn’t taken any precautions to protect their interest in the photo. Of course, in this situation, it also helps to stop using the photo as soon as you learn about the copyright claim.
 
How do you prove innocent infringement?
Innocent infringement is very difficult to prove. The Copyright Act is what we call a “strict liability” statute, meaning that in the overwhelming majority of situations, you are liable for copyright infringement regardless of your intent. It’s not enough to simply say, “well, my employee or volunteer didn’t know better” or “we didn’t mean to infringe on anyone’s rights.” The question is whether you had reason to believe that the action in question was infringing:
 

• Was there a copyright notice on the work? (In this situation, you absolutely cannot claim innocent infringement.)
• Was there a creative commons license or other license indicator? Did you abide by the terms of the license, or did you just ignore them because “no one reads the terms” online?
• How did you find the work? Was it something you just downloaded from the internet and assumed was free to use? Was there some indication that the work was free to use?
• Does the type of work, by its very nature, indicate you should have known there was a copyright owner?

 
In reality, the issue of innocent infringement is more likely to be used successfully in the context of settlement discussions in response to a cease and desist letter rather than resolved by a court after a year or more of litigation. If the case proceeds through litigation and you are found liable for copyright infringement, it is very unlikely that the court will reduce the damages you must pay to the statutory minimum of $200.
 
What are other defenses to a claim of copyright infringement?
But what if you can’t claim innocent infringement when responding to a cease and desist letter, or the copyright claimant refuses to budge from their payment demands? If claiming innocent infringement doesn’t lead to a settlement, then you need to consider whether your business has any other defenses to copyright infringement. Common defenses include:
 

• Independent Development: Can you show that your work was developed independently of and without any knowledge of the copyright claimant’s work?
• Fair Use: This doctrine is also easily misunderstood. Copyright law isn’t meant to prohibit uses that are considered beneficial to society, i.e. using the work for criticism, comment, new reporting, teaching, scholarship or research.
• Failure to Register: Copyright infringement litigation cannot be brought until after the work has been registered with the Copyright Office.

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There may also be other defenses depending on the facts in your particular situation. If you have questions about protecting your copyright or responding to a cease and desist letter please schedule a consultation below.

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*Unfortunately, innocent infringement does not apply at all in cases where the copyright holder is seeking actual damages, i.e. lost sales and profits.