In a previous blog entry we discussed the importance for photographers (and other artists) to digitally watermark their photographs. By digitally watermarking their work, photographers could seek additional damages in some situations in a copyright infringement lawsuit for the removal or alteration of such watermark under section 1203 of the Digital Millennium Copyright Act (DMCA). This is far from the only reason why artists of any variety should place an indication of ownership on their work. For copyright holders, an adequate copyright notice, whether digital watermark or standard imprint, may be even more important than the ability to potentially seek additional damages with respect to section 1203 of the DMCA.
When a work is federally registered and published, a copyright holder will often place a copyright notice on the work (i.e., © Year Published, Name of Owner) as prescribed under sections 401 and 402 of the Copyright Act. The purpose of copyright notice, as highlighted by section 405(b) of the Copyright Act, is to protect innocent infringers. Koontz v. Jaffarian, 617 F. Supp. 1108, 1112 (E.D. Va. 1985) aff’d, 787 F.2d 906 (4th Cir. 1986). An innocent infringer is one or more parties who innocently violate an exclusive right under section 106 of the Copyright Act of a copyright holder in a valid copyright without knowledge of a copyright. Works in the public domain are primary examples of artistic expression that usually bear little or no copyright protection.
Prior to the effective date of the Berne Convention Implementation Act of 1988 (BCIA), the owner of the copyright was required to comply with notice formalities when a work was published or with one of the savings clauses, or forfeit the copyright. Morgan v. Hawthorne Homes, Inc., CIV.A. 04-1809, 2009 WL 1010476 (W.D. Pa. Apr. 14, 2009). For works published before March 1, 1989, the effective date of the BCIA, that do not bear an adequate copyright notice, section 405(b) of the Copyright Act in some cases essentially restricts any liability for actual or statutory damages under section 504 of the Copyright Act provided that the work was publicly distributed under the authority of the copyright owner. This restriction on liability applies to any person who innocently infringes a copyright for any infringing acts committed before receiving actual notice that the work has been federally registered so long as he or she proves that he or she was misled by the omission of notice.
While the defense of innocent infringement can impact the remedies available against a defendant for copyright infringement, it “will not constitute a defense to a finding of liability.” 4-13 Nimmer on Copyright § 13.08. Phoenix Renovation Corp. v. Rodriguez, 439 F. Supp. 2d 510, 517 (E.D. Va. 2006). Consequently, a copyright holder may still be able to recover actual profits obtained by the innocent infringer and may prevent future infringement now that the innocent infringer is on actual notice or require the innocent infringer to pay a license fee to continue exploitation of the work.
An adequate copyright notice, with some specific exceptions, essentially nullifies the defense of innocent infringement in a copyright infringement action insofar as the defendant had access to published cop(ies) that bore an adequate copyright notice. Consequently, it is extremely important to provide an adequate copyright notice on any work being published in order to adequately defend against an innocent infringer defense. Such good practice will likely allow the copyright holder or rights holder, in many circumstances, to seek actual or statutory damages under section 504 of the Copyright Act in an action for copyright infringement.