
AI 101: A Governance Action Plan
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This case leads to an interesting, and important, question: Who can be liable for infringing the artists’ song? How can Heavy Young Heathens name so many companies as defendants in the lawsuit? Could they all be responsible for copyright infringement?
In the case above, both Ms. Knierim and Mr. Frazier will certainly be held liable if Heavy Young Heathens is successful in its lawsuit. But these Olympic athletes likely would not have sufficient assets to cover the judgment in the event of the artists’ success. Copyright owners can seek up to $150,000 per infringement, and direct infringers such as these athletes likely don’t have the assets – so what do the artists do? They look beyond direct liability, to those who might be liable for indirect liability. There are two types of indirect liability: contributory and/or vicarious infringement.
Contributory infringement occurs when someone knowingly induces, causes, or materially contributes to the copyright infringement. Vicarious infringement (frequently applied to employers) does not require knowledge, but instead only requires that the potentially infringing party has the right and ability to, or be in a position to, supervise the infringers and directly benefit financially from the infringement.
Contributory infringement is premised on one’s failure to stop its own actions, which in turn facilitated the third-party infringement. Vicarious infringement is premised in one’s failure to stop a third party from directly infringing. These third-party liabilities are highly fact specific, considering the role of the third party in the action.
Here, Comcast Corporation, NBCUniversal Media, LLC, Peacock, USA Network, and U.S. Figure Skating will all have to spend countless dollars to defend themselves from third-party liability. What are some ways that you can you prevent third party liability in your business?
If you have questions, or would like to speak to one of our intellectual property attorneys, please reach out to amanda.milgrom@milgromlaw.com or jon.milgrom@milgromlaw.com.
ABOUT THE AUTHOR
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Amanda Milgrom represents individuals and businesses of all sizes in various litigation matters regarding employment, intellectual property, and business disputes. She practices employment law, representing employees in discrimination lawsuits and counseling employers on best practices, drafting employee handbooks, and putting together suites of employment contracts.
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