When you imagine a copyright infringement dispute, you might picture two parties: the copyright holder and the party that allegedly used the copyrighted work improperly. However, it is possible for copyright infringement disputes to involve multiple parties.

Some disputes could involve a third party that facilitated the infringing activity. If someone else contributes to copyright infringement, you can hold them accountable for their role in the violation of your copyright protections.

The difference between primary and secondary infringement

Primary infringement involves the direct use of copyrighted work. Secondary infringement, on the other hand, involved secondhand involvement in the direct infringement. Parties who participate in either form of infringement can be held liable in court.

For example, an independent book shop might purchase a novel from a person who claims to have written it and put their name on the cover. After the sale, the shop owner recognizes that the novel was actually written by a different author but decides to sell it anyway to gain a return on their purchase. In this case, the shop owner is participating in secondary infringement, whereas the original novel seller is participating in primary infringement.

Although the bookstore owner did not claim to have created the copyrighted work themselves, they allowed the infringing party to further the misuse of copyrighted work. In court, the original author of the novel could seek a complete cease of the infringement as well as civil damages from both parties as appropriate.

Proving secondary infringement can be challenging

To prove that a party is liable for secondary copyright infringement, you must demonstrate:

  • Your ownership of a valid copyright
  • A separate party committed primary infringement
  • The defendant knew that your work had copyright protection, but enabled or encouraged the primary infringement anyway

It can be difficult to sufficiently prove that the defendant knew or should have known that the other party was infringing on your copyright. Furthermore, when there are two defendants in a copyright infringement dispute, the potential for unique challenges and counter arguments doubles. Although secondary infringement cases are complex, an experienced intellectual property lawyer can help you navigate the process.