"The distributor of that infringing work may also be guilty of copyright infringement."
YOU AND THE LAW
| Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. |
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Distributor Guilty of Copyright Infringement
It is clear that one who copies a copyrighted work may be guilty of copyright infringement. It is also clear that the distributor of that infringing work may also be guilty of copyright infringement. A recent decision from the Federal Court of Appeals for the First Circuit has now confirmed that a distributor can also be guilty of such infringement even where there is no determination that the party supplying the work (the actual copier) is guilty of copying the original work.
The case, Juan R. Ortiz-Gonzalez v. Fonovisa, et al., involved musical compositions included in a record album. However, it is highly pertinent to photography as well.
The defendant in the case argued that they could be guilty only of contributory or vicarious infringement; that is, a secondary infringement, based upon the direct copying of the work by someone else. Since there was no determination of primary infringement, the defendant continued, they could not be guilty of distributing a work where the supplier had not yet been found to have infringed.
The court rejected this argument. It looked to the Copyright Act, and in particular, to the sections which grant to the copyright owner the exclusive right to distribute copies of a copyrighted work, which provides that anyone who violates this exclusive right becomes a direct infringer of the work.
The court therefore concluded that the distribution of an infringing work, in and of itself, can be a direct, primary copyright infringement, leading to liability.
The case confirms that a photographer may, for example, proceed directly against a publisher of a book or other work which contains an infringing photograph without having to first prevail against, or even sue, the author. Such infringement could be a knock-off, or even a use of your image beyond the scope or duration of the original license.
The right of exclusive distribution, which is often neglected, can be a potent weapon, as this case illustrates.
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