Vicarious Copyright Infringement – Who is Controlling Who?

Many are familiar with the claim of direct copyright infringement. In fact, people may also be aware of the indirect claim for contributory copyright infringement. However, a cause of action that is overlooked at times and one that should be considered where appropriate is worth discussing. A claim for vicarious copyright infringement requires three elements.

First, there must be a direct infringement by a primary party. This first element essentially requires that a valid direct copyright infringement action exists. Put another way, there must be allegations that the plaintiff owns a valid copyright and that the defendant has copied that copyright.

Second, there must be a direct financial benefit to the defendant. Such things as additional customers, increased revenue, or an increase in user base is likely to satisfy the second element. Third, and finally, is the right and ability to supervise the primary infringer on the part of defendant.

This third element really comes down to control. Similar to an employer-employee relationship, a court will evaluate the extent of control that the alleged vicarious infringer has over the primary infringer. Such things as directing actions, monitoring conduct or performance, and the ability to prevent a particular type of action will help dictate whether or not sufficient control exists so as to establish the claim.

Ultimately, understanding the copyright ownership, who uses the copyright, who derives benefit from the copyright, and other potential parties affected by the copyright will be critical in determining whether or not a valid claim for vicarious copyright infringement exists.