What Is Contributory Infringement?

The term intellectual property, or “IP,” refers to broad property rights vested in the intangible. Owners of these types of property have the right to possess it, as well as to prevent other individuals from possessing it and to preserve its integrity. This forms the basis of laws against:

• Theft;
• Trespass; and
• Vandalism.

Intellectual property law includes copyright laws, patent laws, and trademark laws. Working with an intellectual property attorney can help a person protect their work, and provide them with peace of mind that their work will not be copied or used by another person without first providing them with compensation.

Each state may have its own specific intellectual property laws and codes. An example of this would be Montana intellectual property law is specifically addressed in the Montana Code Annotated. The legal system as a whole provides specific privileges and protections for owners and inventors of property through intellectual property laws. In short, intellectual property laws protect entities that do not have a physical form.

This may include names and logos which are attached to products, inventions, and original works of authorship. Because no person can physically possess these things, the laws which apply to personal property cannot and do not apply to intellectual property. This is why intellectual property laws generally protect the exclusive rights to use and/or reproduce the intellectual property, rather than its possession. Intellectual property laws may also protect secrecy.

Generally speaking, the person who first created or invented something is the owner of the intellectual property. However, some employers state in their employment contracts that the employer owns what the employees create on the job. Additionally, the rights to intellectual property may be given away temporarily by using a licensing agreement.

What Is Contributory Infringement?

The larger purpose of intellectual property laws is to encourage new ideas, technologies, artistic creativity, and inventions for economic growth with the confidence that creative work and ideas will be protected. To reiterate, intellectual property laws protect entities that do not have a physical form.

As was previously mentioned, the rights to intellectual property may be given away temporarily using a licensing agreement. An example of this would be when a person supplies a manufacturer with a logo that has been trademarked, knowing that it will be used for purposes that violate the trademark protections.

Contributory infringement can happen in a variety of settings, including those associated with:

• Copyright infringement;
• Trademark infringement; and
• Patent infringement.

While the basic idea behind contributory infringement is the same for these types of examples, there may be differences in the application of liability principles for copyright, trademark, and patent cases. An example of this would be how trademark and patent infringement rely on codified statutes for contributory liability definitions. Alternatively, contributory copyright infringement is largely based on case law.

Are There Any Legal Penalties For Contributory Infringement?

Depending on the nature of the infringement and the facts involved, contributory infringement penalties can be as severe as those associated with direct infringement violations. These may include penalties such as:

• Fines;
• Civil damages for losses caused by the infringement;
• Confiscation of materials used in the infringement process; and
• In some cases, serious criminal penalties.

Defenses may be available to the defendant, depending on the circumstances. An example of this would be how the Fair Use defense allows people to use copyrighted material without the copyright owner’s permission. However, when determining whether your work is fair use, you must consider several factors:

• The Purpose and Character Of Your Work: If your work transforms the original work into something completely new, such as using gum wrappers to make a bag, it is more likely to be considered fair use. However, if your work just copies the original work such as a movie adaptation of a book, it is less likely to be considered fair use;
• The Nature Of The Copyrighted Work: If the original work is considerably creative and original, it may be more difficult for you to use the fair use defense;
• The Amount and Quality Of The Material Used: If you take a substantial amount of material from the copyrighted work, or if you take material that is essential to the copyrighted work, it will be more difficult for you to prove fair use; and/or
• The Effect On The Market For The Original Work: Copying is more likely to be considered fair use if it does not harm the market for the original work.

Some other common defenses to copyright infringement include:

• Independent Creation: If you created your work without any knowledge of the copyrighted work, you have not infringed on the copyright. This is because you did not actually copy the original. In order to prove this, you generally must prove that there was no reasonable way for you to have been aware of the copyrighted work prior to the creation of your own work;
• First Sale: The owner of a lawfully made copy of a copyrighted work has the right to sell or otherwise dispose of it. They may also display their copy of the work to the public. An example of this would be how if you buy a painting, you can sell it to your friend or display it at a museum without infringing on the copyright owner’s exclusive rights to distribution and display; and/or
• Violation Of The Statute Of Limitations: If the copyright owner waits too long to bring a suit against you, they may not have a valid suit.

If you had no reason to believe that the original work was protected by copyright, or if you thought that your use was fair, you could be considered to be an innocent infringer. Innocent infringers must cease their infringing behavior and pay the copyright owner for the commercial value of their use, but they generally do not have to pay damages to the copyright owner.

What Else Should I Know About Infringement In General?

Those who should be particularly concerned with infringement include:

• Creative employees, or employees whose job descriptions require them to make new creative works, such as writers, graphic designers, etc. They should be aware of the fact that, in general, their employer owns the copyright on any works that they produce in the scope of their employment. This rule does not apply to independent contractors; however, it is always advisable for an independent contractor and those hiring them to draft an agreement about who will own the IP rights in the work that the contractor was hired to create;
• Employees in high-tech industries, as numerous lawsuits have started when an engineer moves from one company to another and takes trade secrets with them; and
• Employers, as was previously mentioned, there may be confusion associated with who owns a creative work when it is produced in the course of employment.

When intellectual property has been infringed, the owner may seek damages against the infringer, including any:

• Lost profits;
• Punitive damages; and
• Statutory damages.

Some types of infringement may also incur criminal fines, or require the confiscation of any and all infringing goods. An infringement lawsuit may be filed in connection with intellectual property, which is protected under state or federal laws.

Do I Need A Lawyer For Help With Contributory Infringement?

Contributory infringement violations can result in some considerably serious legal consequences, as the defendant may face consequences as if they were actively and primarily involved in the infringement themselves.

You should hire a qualified intellectual property lawyer if you are experiencing any legal issues associated with contributory infringement. Your attorney can help you understand your legal rights and issues according to your state’s specific laws, and will also be able to represent you in court, as needed.