Erickson Productions vs. Kast defines willful infringement under copyright law

Attorney Steve® - Copyright Infringement Essentials - Willful infringement explained!

In this exciting episode of Vondran Legal Hour, we discuss a recent case filed in the Central District of California, but transferred to the Northern District which involved claims of photo infringement.  In this case, a defendant hired a web development company to build out their website, and the website ultimately ended up using 3 photos (that were never properly licensed) which belonged to the Plaintiff Erickson Products).

The jury was instructed that "willful" infringement could be establised if the Defendant "should have known" about the infringement.  The Court disagreed and reversed and remanded to the district court to provide the proper instructions on willfullness, which as the court put it:

"Negligence is a less culpable mental state than actual knowledge, willful blindness, or recklessness, the three mental states that properly support a finding of willfulness. See Global-Tech Appliances, 563 U.S. at 770; Unicolors, 853 F.3d at 992. “[A] willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing and who can almost be said to have actually known the critical facts. By contrast, a reckless defendant is one who merely knows of a substantial and unjustified risk of such wrongdoing, and a negligent defendant is one who should have known of a similar risk but, in fact, did not.” Global-Tech Appliances, 563 U.S. at 769–70 (citations omitted). Thus, Kast is correct that the judge permitted the jury to find willfulness on the basis of a lesser mental state than our cases demand"