Can you commit copyright infringement by mistake? Davidson v. United States

Copyright law is intended to protect the had work of artisans and creative trades. When an artist creates a new work like a painting or sculpture they are automatically granted the copyright to that work. The owner of a copyright is granted certain exclusive rights, such as the right to reproduce, distribute, perform, display, transmit or make derivative works. A derivative work is a work based on or derived from one or more already existing works. Common derivative works include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, abridgments, and condensations of preexisting works. A picture of a sculpture would be considered a derivative work. If someone other than the copyright holder attempts to exercise one of those exclusive rights that can be considered copyright infringement.

Frequently laws in the United States have an action component and a mental component. A defendant must do something wrong, and know they are doing something wrong, to be liable. Copyright infringement can occur willfully or accidentally, but copyright law prohibits both. Copyright infringement is a strict liability tort, this means there is no need to prove anything about a defendant’s mental state. A defendant in a copyright infringement lawsuit cannot use mistake as a defense.

A case which illustrates a defendant trying to claim they were not liable for copyright infringement because of mistake is Davidson v. United States, No. 13-942C (Fed. Cl. June 29, 2018). Robert Davidson is a sculptor who created a replica of the Statue of Liberty which was positioned outside of a casino in Las Vegas Nevada. The defendant in the case is the Untied States Postal Service. The United States Postal Service launched a new line of stamps which featured an image the statue of liberty. The Postal Service made a good faith effort to properly license a photograph of the statue of liberty in New York from Getty Images, a company which licenses photographs. The Postal Service then used the photograph they licensed from Getty on stamps. Unfortunately for the Postal Service, the licensed photograph was not of the statue of liberty in New York but of Davidson’s replica in Las Vegas. Davidson sued the Postal Service for copyright infringement.

The court determined that the postal service’s use of a photograph of the Davidson’s statute was not a fair use. The court analyzed the four factors of fair use to come to this conclusion. For the first factor, purpose and character of the infringing work, the court found in favor of Davidson. The court found that the use was commercial: the particular photograph was chosen in large part based on the attractiveness of the image in hopes of achieving higher sales. The court found that the second fair use factor, nature of the copyrighted work, was neutral. The original elements of plaintiff’s statue were creative and expressive, its intended use as a replica mitigates in favor of defendant. Moreover, the statue had been on public display, which indicates that a use is more likely to be fair. The third factor, amount and substantiality of the portion used, weighed against a finding of fair use. The photograph used on the stamp, in focusing on the face of the statue, highlighted the original and expressive portion of plaintiff’s statue. The final factor, effect of the use upon the potential market, weighed in favor of fair use. The plaintiff conceded that he could cite no harm to his business from the Postal Service’s use of the image, and he has shown no other interest in exploiting the work. Weighing the factors together, the court concluded that the fact the USPS printed billions of copies and sold them to the public as part of a business enterprise overwhelmingly favored a finding of infringement. Even after the USPS realized its error, it offered neither public attribution nor apology. The court, therefore, found that the government’s use of the photograph featuring Davidson’s statue was not fair.

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