No Vicarious Thrills Here
Be careful not to control someone else’s infringing activities. Barcroft Media Ltd. provides a video and image library available for download. Photographer, Jeffrey R. Werner, filed suit against Barcroft alleging that it allowed Valnet Inc. to download his photos without his consent. Jeffrey alleged that Barcroft materially contributed to Valnet’s infringement by granting Valnet a retroactive license. Barcroft brought a motion to dismiss arguing that Jeffrey didn’t state a claim. The court denied the motion deciding that Jeffrey stated a claim for vicarious liability and contributory infringement. Although the court expressed some doubt as to whether Jeffery’s going to be able to prove the facts to support his case.
**WHY YOU SHOULD KNOW THIS. ** A party that is one step removed from infringing activity can get caught in the litigation net under two theories of secondary liability. One type is vicarious liability which has two elements: (1) the right and ability to supervise or control the infringing activity; and (2) a direct financial benefit from that activity. The other type is "contributory infringement" in which one induces, causes or materially contributes to copyright infringement. To avoid secondary liability, it’s always best to step away and not enable potential copyright infringement.