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U.S. copyright law[]

Section 504(c)(2) of the 1976 Copyright Act provides for an "innocent intent" response to allegations of copyright infringement.[1] Generally, a claim of innocent infringement is not a defense against a finding of infringement. An innocent infringer is liable for the infringement, but a court may reduce — or, in some instances, remit altogether — the amount of damages.[2]

There are at least three scenarios in which "innocent intent" may be applied to infringing content:

  1. The defendant's work is copied from the plaintiffs', but was done subconsciously and in good faith, having forgotten that the plaintiffs' work was the source.[3]
  2. Defendant's work is based upon an infringing work furnished by a third party.[4]
  3. Defendant consciously and intentionally copies from the plaintiff's work, with a good faith belief that the conduct is not infringing.[5]

The result of demonstrating innocent intent is that a court has the flexibility to reduce statutory damages below the minimum of $750 to as low as $200.[6] Yet, even when infringement is proven, the court may exercise its discretion in awarding damages.

The burden of proving innocent intent is on the defendant and is "a heavy one."[7] "The defendant must prove that it did not know and should not have known that its conduct constituted infringement."[8] Further, the defendant "must not only establish its good faith belief in the innocence of its conduct, [but] it must also show that it was reasonable in holding such a belief."[9] Use of the innocent infringer damage reduction "appears to have been limited to cases where the defendant (often unsophisticated) proves that it did not know about plaintiff's copyright and immediately ceased its infringing conduct upon being made aware of plaintiff's copyright claim."[10]

Under certain, specified circumstances, a good faith reliance on a presumption that the term of protection had expired is a complete defense to an infringement action.[11]


  1. 17 U.S.C. §504(c)(2).
  2. See id. §504(c)(2). If a proper copyright notice was affixed to the published copy to which the infringer had access, the court may not give any weight to a claim of innocent infringement in mitigation of damages, except in limited circumstances involving certain infringers (including nonprofit educational institutions and libraries) who violated certain exclusive rights and who believed, and had reasonable grounds for believing that the use was a fair use. See id. §§401(d), 504(c)(2); see also id. §405(b) (effect on innocent infringers of omission of copyright notice on copies publicly distributed before March 1, 1989).
  3. See, e.g., Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177 (S.D.N.Y. 1976) (full-text).
  4. See, e.g., Buck v. Jewell-La Salle Realty Co., 283 U.S. 191, 198 (1930) (full-text).
  5. See, e.g., Wihtol v. Crow, 309 F.2d 777 (8th Cir. 1962) (full-text).
  6. 17 U.S.C. §504(c)(2).
  7. National Football League v. Primetime 24 Joint Venture, 131 F.Supp.2d 458, 476 (S.D.N.Y. 2001) (full-text).
  8. Branch v. Ogilvy & Mather, Inc., 772 F. Supp. 1359, 1364 (S.D.N.Y. 1991) (full-text).
  9. Peer Int’l Corp. v. Pausa Records, Inc., 909 F.2d 1332, 1336 (9th. Cir. 1990) (full-text), cert. denied, 498 U.S. 1109 (1991).
  10. Id. See also D.C. Comics Inc. v. Mini Gift Shop, 912 F.2d 29, 35 (2d Cir. 1990) (full-text) ("The level of sophistication of the defendant in business is an entirely proper means of determining whether or not his infringement was innocent.")
  11. See 17 U.S.C. §302(e) (after a period of 75 years from first publication of a work, or 100 years from its creation, whichever is shorter, a person who obtains from the Copyright Office a certified report that the records relating to the deaths of authors disclose nothing to indicate that the author is living, or died less than 50 years before, may presume that the author has been dead for at least 50 years, and good faith reliance on that presumption is a complete defense).