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Clarifying the Record as to Innocent Infringer "Defense" to Copyright Infringement

Posted by Dragan Dan Ivetić | May 10, 2024 | 0 Comments

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Do you understand the law on innocent infringement?


Clarifying the Record as to Innocent Infringer "Defense" to Copyright Infringement

In the intricate world of copyright law, understanding the concept of the "innocent infringer" could be pivotal for small business owners, content creators, and independent artists. This legal designation might sound like a "get-out-of-jail-free card," but it's far from a straightforward acquittal. Here, we'll demystify the principles surrounding innocent infringement, its defenses, limitations, and the potential pitfalls that lie within.

Understanding Innocent Infringement

Some of the most common inquiries that copyright lawyers receive are from potential clients who have been served with a cease and desist from the owner of copyrighted works claiming infringement. Invariably, business owners will claim innocence because they did not knowingly or intentionally use the copyrighted work. In essence, they did not intend the infringement. It is a popular myth that such facts provide a "defense" to liability for copyright infringement. News flash - innocence infringer status is not an absolute defense to liability for copyright infringement. At its core, the doctrine of innocent infringement is a nuanced defense strategy for those accused of copyright violation. It acknowledges a situation where an individual may unknowingly infringe upon copyrighted material, often due to a lack of understanding or awareness of the law. However, it's crucial to recognize that claiming ignorance does not entirely absolve one of liability.

Not a Complete Defense

The innocent infringer defense comes from Section 504(c)(2) of the Copyright Act -- “[...] in a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.” The concept of innocent infringement is misleading to some, as it suggests a possibility of complete exoneration. Instead, it functions more as a mitigating factor when courts consider the penalties for copyright violations. Unlike criminal law, where criminal intent is key, in civil actions for copyright infringement, the lack of criminal or nefarious intent does not exonerate a defendant. The assertion of innocence doesn't negate the infringement but can influence the extent of statutory damages awarded. You see, in many ways, copyright infringement can be a form of "strict liability."

Requirements for Innocent Infringement

To successfully claim innocent infringement, there are specific requirements that must be met. These include:

  • Lack of awareness: The infringer must not have known or had any reason to believe that their actions violated copyright law.
  • Good faith belief: They must have genuinely believed that their use of the copyrighted work was authorized, either through a license or fair use.
  • No profit motive: The infringement must not have been for commercial gain.

Another key to understanding innocent infringement is thatthat their actions violated it only applies to circumstances where the plaintiff is seeking statutory damages. A defendant's status as an "innocent infringer" will not assist in providing a basis to limit or lower actual damages suffered by the owner of the copyright rights to a work.

Limiting Statutory Damages

When a defendant successfully establishes themselves as an innocent infringer, courts have the discretion to reduce statutory damages significantly. (dropping the penalties from thousands to hundreds of dollars) It offers a silver lining in otherwise cloudy circumstances, potentially lowering financial liabilities from potentially crippling sums to more manageable amounts. Despite this, the total relief is at the court's mercy and dependent on proving innocence convincingly.

Proving Innocence

Demonstrating innocent infringement involves navigating complex legal standards, making the guidance of skilled legal counsel indispensable. A defendant must convincingly show a lack of knowledge of the infringement, which can be a high bar to meet. Factors influencing this outcome include the means by which the copyrighted material was accessed, the presence of copyright notices, and the nature of the use itself.

Considerable effort must go into establishing a lack of willful disregard for copyright laws, often requiring detailed documentation and compelling argumentation.

Problems with the Innocent Infringer Defense

While the innocent infringer defense provides a potential pathway to reduced damages, relying on it comes with its fair share of hurdles:

  • Proving Innocence: The burden of proof lies heavily on the defendant to demonstrate a lack of knowledge and intent.
  • Limited to Statutory Damages: Even if innocence is established, defendants are still liable for actual damages and profits gained from the infringement.
  • Possible Rejection: Courts have discretion in accepting the defense, and there's no guarantee of success.


The innocent infringer defense in copyright law serves as a reminder of the critical importance of due diligence when using copyrighted material. While it offers a potential reduction in damages for those who can prove their lack of knowledge and intent, it is not a fail-safe against infringement charges. Independent artists, content creators, and small business owners should educate themselves on copyright norms to avoid potential violations. Seeking professional legal advice before publishing, sharing, or using copyrighted material is advisable to prevent unintentional infringement and its legal repercussions. Our law firm would be happy to provide you with the professional advice and guidance that you need.

Legal resources and professional assistance are valuable first steps for those currently navigating copyright infringement issues or looking to learn more about how to protect themselves. Understanding the complexity of copyright law and the nuances of the innocent infringer defense can empower individuals to make informed decisions in their creative and business endeavors.

Contact our office for a free copyright consultation.

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About the Author

Dragan Dan Ivetić

DRAGAN DAN IVETIĆ was born and raised in the Chicago suburbs, and wanted to become an attorney to help people from a young age.  He received a bachelor's d...


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