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Lets suppose Party A creates material and decides to distribute it under some restrictive license entailing fees or similar.

Party B now obtains a copy from the copyright holder A and makes it available under some less restrictive license (which violates the license agreement with A).

Party C now obtains a copy from B.

What are the implications to B and C provided that:

  • B obtained the copy legally/illegally
  • B made the copy available under the less restrictive licence knowingly/unknowingly

Also, are there significant differences in EU/US?

I am asking simply as an interested amateur and have no serious background in law.

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This is what is known as "innocent infringement". In the US, you have reduced liability but not none. You would be liable for the actual damages (e.g. the cost of a copy, or however many copies were improperly obtained), and for statutory damages which the court can reduce to $200. This assumes that the party reasonably believes that they have permission. This happened to the US Postal Service, which is now being sued for 4 billion infringements of an artist's copyright, apparently because somebody didn't correctly distinguish between a picture of the Statue of Liberty and a modern version.

(There is apparently some confusion over Davidson's lawsuit against USPS. USPS distributed stamps reproducing Davidson's sculpture, without his permission, on the mistaken belief that the image was of the actual Statue of Liberty. Sculptural works are protected by copyright, and permission is required to create and distribute a derivative work. For a very similar post stamp infringement case involving a different sculpture, see Gaylord v. United States, 595 F.3d 1364). In that case as well, USPS did not get permission from the copyright holder. The photographer received permission from a partner in the firm that constructed the memorial in question, but the firm did not hold copyright in the infringed sculpture. USPS was then referred to the partner for permission to use the underlying work. The USPS's unsuccessful defense was based on fair use, not innocent infringement. Substantial damages were awarded to Gaylord. The outcome of Davidson has not been determined, and again, will not hinge on innocent infringement, but might hinge on fair use, or on a classification of the sculpture as part of an architectural work. It is not clear whether the photographer who took the photo in the Davidson case had permission from Davidson).

  • Are the plaintiffs suggesting that the US copyright on the Statue of Liberty has not expired? – Upnorth Sep 6 '17 at 5:53
  • The undisputed fact is that the image used by USPS is of a recent artist's recreation, so what they copied is indeed protected by copyright. – user6726 Sep 6 '17 at 14:45
  • Copyright of a photo of a fixed object in public is "thin", meaning you would only have copyright of the parts of the photo that you contributed, if they contain some "substantial originality", not everything else in the photo, let alone parts that are public domain. – Upnorth Sep 8 '17 at 17:19
  • @Upnorth I think that "picture" in this case means painting and not photo. – ohwilleke Nov 3 '17 at 18:44
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It is very common for parties in a strong position commercially to insist on a contractual indemnification for failure to have a license to do what is licensed in a licensing or sub-licensing agreement.

For example, Walmart's contracts with its vendors have provisions of that type (I came across it in IP litigation between two of its vendors).

I wouldn't even be surprised to see a court find that there is an implied warranty of authority to license in every licensing agreement that doesn't expressly disavow that warranty of authority. (The equivalent implied warranty would exist in every sale of goods.)

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