Vicarious Infringement

Definition

Vicarious infringement is a form of secondary liability for direct infringement based on the common law principle of respondeat superior.

A person may be held liable for the infringing acts committed by another if he or she had the right and ability to control the infringing activities and had a direct financial interest in such activities.  The existence of direct infringement is required to establish a claim of vicarious infringement: however, it is not necessary for the alleged infringer to have intent or knowledge of the infringement.

Overview

The concept of vicarious infringement is basically the same in the context of both trademark and copyright, but cases involving trademark infringement tend to require the alleged infringer to have a greater degree of control over, or involvement in, the infringing activity than is necessary for cases involving copyright infringement.

For further discussion of the concept of vicarious infringement related to both copyright and trademark:  See, e.g., Fonovisa v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996); Hard Rock Cafe v. Concession Services, Inc., 955 F.2d 1143 (C.A.7 1992); Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159 (2d Cir. 1971).

The concept of vicarious infringement has taken on new importance in the context of the Internet.  For cases discussing vicarious infringement related to the Internet:  See Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd., 545 U.S. 913 (2005).

See also: contributory infringement

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