Secondary copyright infringement is a legal theory that allows a person to be held liable for copyright infringement, even though they didn’t engage in the actual infringement activities themselves. It involves the defendant inducing, causing, or contributing to material copyright infringement activities.
Secondary copyright infringement may carry with it some strict legal consequences. It is also called contributory infringement or secondary liability for copyright infringement.
The basic components of a claim against a secondary infringer are similar to those of a major infringer’s claim. You must show that your copyright has been registered with the United States Copyright Office. (While having copyright does not necessitate registration, it does necessitate filing a case in federal court to assert your rights.) You can register copyright regardless of the work’s quality as long as it contains an appearance of innovation.
You can sue for any violation of one of the exclusive rights established by Section 106 of the Copyright Act once you’ve registered. These rights include the ability to reproduce (or copy) the work, distribute (or sell) the work, make modifications (derivatives) of the work, and publicly perform or show work as a play, song, movie, painting, or sculpture.
Distinctive Elements of Secondary Infringement
The Copyright Act makes no mention of secondary liability in the case of infringement. Copyright owners, on the other hand, have been able to submit these theories in federal courts. Despite the fact that federal statutes are identical throughout the country, federal appellate courts are free to establish their own interpretations unless the United States Supreme Court intervenes to resolve a controversy. Because the Supreme Court has yet to establish a unified test for copyright infringement, federal appellate courts have devised their own standards for when copyright owners can hold third parties accountable for infringement.
However, there are certain similarities among several tests. Most copyright holders will have to prove that a third party purposefully or knowingly instigated the infringement or provided the principal offender with the tools to carry it out. They’ll very certainly have to establish that the violation resulted in a benefit (such as a profit) for the third party. The primary infringer, for example, might present the infringing material to a retailer as their own. If the store accepts to sell copies of the infringing work despite knowing that it has reproduced the copyright owner’s work, it will be liable for secondary infringement.
It’s uncommon to get direct evidence that a third party was aware that a work infringed on a copyright. More often than not, a plaintiff will have to rely on circumstantial evidence to show that their work was sufficiently known in a certain field or business for a third party to notice the infringement. They would, however, have to provide evidence in addition to their own argument that this is accurate.