Vondran Legal® - Copyright Law Insights - Willful infringement includes "reckless disregard" but what does this mean?
By Attorney Steve® Vondran
Introduction
One of the most expensive findings a copyright defendant can face is a determination that infringement was "willful." Why? Because a finding of willful infringement can dramatically increase statutory damages under the Copyright Act and can significantly influence settlement negotiations. But many people misunderstand what courts mean when they say an infringer acted with "reckless disregard" of a copyright owner's rights. Does reckless disregard mean the defendant intended to steal someone's work? Not necessarily.
In many cases, a copyright plaintiff does not have direct evidence showing the defendant admitted they were infringing. Instead, courts often look at the surrounding circumstances to determine whether the defendant consciously ignored obvious copyright risks. Let's examine what reckless disregard really means and how courts have applied the concept.
The Legal Standard for Willfulness
Copyright infringement is willful when the defendant either had actual knowledge that its conduct infringed the plaintiff's copyright or acted with reckless disregard for, or willful blindness to, the plaintiff's rights. Recklessness exists where the defendant was aware of facts creating a substantial risk of infringement and consciously failed to investigate or proceeded despite that risk.
Continued infringement after notice, failure to conduct reasonable rights clearance, deliberate avoidance of ownership inquiries, and disregard of obvious copyright indicators are all circumstances from which a jury may infer willfulness.
Federal courts have long held that copyright infringement is willful when the defendant either:
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Had actual knowledge that its conduct infringed copyright; or
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Acted with reckless disregard or willful blindness to the copyright owner's rights.
One of the most frequently cited cases is Fitzgerald Publishing Co. v. Baylor Publishing Co., 807 F.2d 1110 (2d Cir. 1986), where the court explained that willfulness exists when a defendant knew its conduct was infringing or acted with reckless disregard of the copyright holder's rights.
While Fitzgerald is a Second Circuit case, courts throughout the country regularly cite it for the proposition that willfulness can be proven through circumstantial evidence.
Recklessness Is More Than Negligence
A critical distinction exists between negligence and recklessness.
Negligence generally means a person failed to exercise reasonable care.
Recklessness, however, involves something more serious. It occurs when a person is aware of facts suggesting a substantial risk that infringement is occurring and chooses to proceed anyway.
In other words:
Recklessness is not merely failing to know. It is ignoring what should have been obvious.
A defendant does not get a free pass simply because they never asked whether they had permission to use copyrighted content.
The Ninth Circuit's Approach
The Ninth Circuit recognizes that willfulness may be established through actual knowledge, reckless disregard, or willful blindness.
One of the most important Ninth Circuit decisions discussing reckless disregard is Unicolors, Inc. v. Urban Outfitters, Inc., 853 F.3d 980 (9th Cir. 2017).
In that case, Urban Outfitters sold products incorporating textile designs that were allegedly copied from copyrighted works. Evidence showed that Urban relied heavily on third-party vendors while failing to adequately investigate ownership rights and copyright issues associated with the designs.
The Ninth Circuit upheld the jury's finding of willfulness, concluding that substantial evidence supported a determination that Urban Outfitters acted with reckless disregard of copyright rights.
The lesson is significant:
A company cannot simply avoid asking questions and later claim ignorance.
When warning signs exist, businesses are expected to investigate.
What Courts Commonly View as Reckless Disregard
1. Ignoring Obvious Copyright Notices
Suppose a company downloads a professional photograph from a website displaying a copyright notice and uses it in advertising without obtaining a license.
A jury may conclude the company consciously disregarded a substantial risk that the image was protected.
2. Failing to Investigate Ownership Issues
Many infringement cases involve situations where defendants suspect copyright rights may exist but never bother to verify ownership.
For example:
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Using images found online without confirming licensing rights;
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Copying website content without permission;
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Using music obtained from questionable sources;
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Incorporating artwork supplied by a third party without conducting any clearance review.
Courts often view these situations as evidence of reckless disregard.
3. Continuing Infringement After Notice
Perhaps the strongest evidence of willfulness occurs when a defendant receives a cease-and-desist letter but continues the infringing conduct.
In Flowserve Corp. v. Hallmark Pump Co., the court found that continuing to use copyrighted material after receiving notice strongly supported a finding of willfulness.
Once a defendant has been notified of a copyright claim, continued use becomes increasingly difficult to justify as an innocent mistake.
4. Deliberate Avoidance
Courts frequently refer to this concept as willful blindness.
Examples include:
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Refusing to review licensing documents;
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Avoiding conversations about ownership rights;
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Declining to consult legal counsel because the answer might be unfavorable;
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Intentionally remaining ignorant of copyright issues.
The law does not reward purposeful ignorance.
As courts often note, a defendant cannot avoid liability by "sticking its head in the sand."
What Is Usually Not Reckless?
Not every infringement case involves willfulness.
Examples that may defeat a willfulness claim include:
Honest Mistakes
A clerical error, misunderstanding, or administrative oversight may constitute negligence but not recklessness.
Reasonable Reliance on a License
If a defendant reasonably believed a vendor possessed authority to grant a license, that evidence may weigh against a finding of willfulness.
Genuine Good-Faith Belief
Where a defendant has a legitimate basis for believing it owns or is authorized to use the material, courts may reject claims of willfulness even if infringement ultimately occurred.
Why Reckless Disregard Matters
A finding of reckless disregard can significantly increase exposure under the Copyright Act.
For copyrighted works registered before infringement began, statutory damages can increase dramatically when infringement is found to be willful. The finding may also influence:
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Attorney fee awards;
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Settlement leverage;
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Injunctive relief;
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Credibility before a jury.
For businesses, the safest course is simple:
When copyright ownership is uncertain, investigate before using the content.
The cost of a license or legal review is often far less than the cost of defending a willful copyright infringement claim.
Final Thoughts
The phrase "reckless disregard" does not require proof that a defendant openly admitted infringement.
Instead, courts focus on whether the defendant ignored obvious copyright risks, failed to investigate known warning signs, or deliberately avoided learning the truth.
The modern lesson from cases like Fitzgerald Publishing and the Ninth Circuit's decision in Unicolors v. Urban Outfitters is clear:
When substantial copyright risks are staring a defendant in the face, choosing not to look may be just as damaging as knowing the answer.
And in copyright litigation, what you deliberately choose not to know can be every bit as costly as what you actually know.
