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Contributory Infringement and Vicarious Liability for Copyright Infringement

Co-author Gerald M. Levine

Copyright is not limited to literary works but extends to other creative productions. Expressive material in literary works are only one color on the palette of creativity. Literary works are first on the list of 8 in §102 of the Copyright Act. The second on the list is “musical works, including any accompanying words.” All original works of authorship or composership all the way down to draftsmanship (architectural works) are covered by copyright protection. And, the protections and theories of liability that relate to one apply equally to the others. Expressive material, whether words in literary works or notes in musical works are intellectual property. The protections are illustrated in a recent case from the United States District Court from the Eastern District of Michigan, Southern Division that addresses infringement of “accompanying words” to a musical work. ABKCO Music, Inc. v. Johnnie Washington, 11-10763 (October 18, 2011) involved both words and sound recordings. The sound recordings “infringed” in ABKCO Music were created prior to February,15, 1972, thus not covered in the Copyright Act, so I will summarize the case only as it relates to the song words.

The case is instructive because it illustrates the reach of liability. Not only the infringer itself, but also any party who contributes to the infringement of a copyright has liability to the copyright owner. “Contributory infringement occurs” (quoting from ABKCO Music) “when a party with knowledge of the infringing activity, induces, causes or materially contributes to the infringement conduct of another,” citing a decision from the U.S. Court of Appeals from the 6th Circuit which in turn is citing a decision from the U.S. Court of Appeals from the 2nd Circuit, Gershwin Publi’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971). (As in all these Notes I include the case citations for anyone interested in reading the entire cases.)

The ABKCO defendants are the producer and author of a play of the singer/songwriter Sam Cooke, the company that owns the venue at which the play was produced and a marketing company that produced a promotional video (AV Ad). Against the producer and author, plaintiffs claim that they included a medley of Cooke’s songs before the main scenes of the production. The defendants argued that they did not infringe any of the copyrights “because the Songs were performed as a medley prior to the beginning of the Production and not used during the course of the Production itself.”

Against the marketing company, plaintiffs claim that the AV Ad it created included copyrighted songs. The producer and author defendants sought to avoid contributory and vicarious liability by arguing that “they were unaware of the material [the marketing company] used in the [AV Ad] and [that the marketing company] had ‘complete authority to create an e-blast advertisement.” The gist here is that defendants did not “directly infringe on the copyrights … because they did not directly produce or publish the AV Ad.”

The court rejected both defenses. The medley of songs, the direct infringement (despite the claim that it was not part of the performance) was integral to the dramatic presentation. The indirect infringement is actionable against the producer and author under two theories, contributory infringement and vicarious liability. The court explained that

Defendants cannot shield themselves from liability by simply failing to watch their own promotional video. [They] should have known the contents of the AV Ad. Defendants’ relationship with [the marketing company] as we as Defendants’ financial interest in the successful promotion of the Production, renders defendants liable for the copyright infringement of the [marketing company].”

Vicarious liability rests on a principal/agent theory:

Even in the absence of an employer-employee relationship, a defendant can be vicariously liable for copyright infringement when: (1) a defendant has the right to and ability to supervise the infringing conduct and (2) the defendant has an obvious and direct financial interest in the infringement.”

Thus, exposure to liability for infringement of creative works can extend beyond the direct infringer who created the AV Ad to reach the initiator or contributor to the infringements however it may try to disguise its involvement.

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