Factors that may support a finding of "willful copyright infringement"; JD Supra, June 3, 2026

 Steve Vondran , JD Supra; Factors that may support a finding of "willful copyright infringement"

"In copyright litigation, identifying the facts that may support a finding of willful infringement can be critical in any case, whether you are on the plaintiff or defense side. A willfulness finding may significantly increase the defendant's financial exposure, including the potential for enhanced statutory damages damages ($30,000-150,000), attorneys' fees, and injunctive relief. Just as important, where the infringement is carried out through a corporation, courts may examine whether company officers, directors, owners, or managers personally participated in, directed, authorized, or financially benefited from the infringing activity. For this reason, copyright plaintiffs should carefully evaluate evidence such as prior notice, cease-and-desist letters, continued use after warning, concealment, removal of copyright management information (17 U.S.C. 1202 claims), repeated infringement, and decision-maker involvement. These facts can help establish not only infringement but also whether the conduct was knowing, reckless, or intentional, which could lead to broader liability against the individuals behind the business. This is what we refer to as "officer and director copyright liability," which allows plaintiffs to name both individuals and their corporations notwithstanding the corporate veil!

Federal courts do not apply a single universal test for "willful infringement" in copyright cases. However, courts repeatedly identify certain facts and circumstances that support a finding that infringement was knowing, intentional, reckless, or undertaken with willful blindness. This blog provides some general concepts to consider in your next infringement matter."

Nielsen's Gracenote sues OpenAI for copyright infringement; Axios, March 10, 2026

 Sara Fischer, Axios; Nielsen's Gracenote sues OpenAI for copyright infringement

"How it works: Gracenote employs hundreds of editors who use human insight and judgment to create millions of narrative descriptions, original video descriptors, unique identifiers and other program identifiers that TV providers and other clients can use to help customers discover content. 

For example, Gracenote editors described HBO's "Game of Thrones" as "the depiction of two power families — kings and queens, knights and renegades, liars and honest men — playing a deadly game of control of the Seven Kingdoms of Westeros, and to sit atop the Iron Throne."

In the lawsuit, Gracenote alleges OpenAI scraped and used a near-exact copy of that descriptor when prompted by a ChatGPT user to describe "Game of Thrones." 

It provides several other examples where, with minimal prompting, OpenAI's various ChatGPT models recite large portions of Gracenote's program descriptions verbatim. 

Between the lines: Gracenote's entire Programs Database, which includes its metadata and the proprietary relational map its editors use to connect that data, is registered with the U.S. Copyright Office."

A copyright lawsuit over pirated books could result in ‘business-ending’ damages for Anthropic; Fortune, July 28, 2025

  BEATRICE NOLAN , Fortune; A copyright lawsuit over pirated books could result in ‘business-ending’ damages for Anthropic

"A class-action lawsuit against Anthropic could expose the AI company to billions in copyright damages over its alleged use of pirated books from shadow libraries like LibGen and PiLiMi to train its models. While a federal judge ruled that training on lawfully obtained books may qualify as fair use, the court will hold a separate trial to address the allegedly illegal acquisition and storage of copyrighted works. Legal experts warn that statutory damages could be severe, with estimates ranging from $1 billion to over $100 billion."

Mike Kelley vs. Trump: The Photo That Could Spark a Presidential Copyright War; Fstoppers, June 1, 2025

 Patrick Hall, Fstoppers; Mike Kelley vs. Trump: The Photo That Could Spark a Presidential Copyright War

"Your Thoughts?

What do you think will happen to this case when it is filed? Obviously something like this will take years to make its way through the courts, and perhaps Trump will not even be president by the time it makes it to the Federal 9th Circuit Court of Appeals where it will most likely reside. Do you think Mike has a strong enough case for Willful Infringement under statutory infringement or because this is a meme that perhaps originated somewhere else on the internet, could it be viewed as unwilling? Do you think Trump would ever succeed at claiming his posts on Truth Social fall under official acts of a sitting president?"

Why Every Media Company Fears Richard Liebowitz; Slate, May 24, 2018

Justin Peters, Slate; Why Every Media Company Fears Richard Liebowitz

"Key to Liebowitz’s strategy is the pursuit of statutory damages. Under the Copyright Act of 1976, federal plaintiffs can be awarded statutory damages if they can prove “willful” infringement, a term that is not explicitly defined in the text of the bill. (“What is willful infringement? It’s what the courts say it is,” explained Adwar. Welcome to the wonderfully vague world of copyright law!) If a plaintiff had registered the work in question with the Copyright Office before the infringement occurred or up to three months after the work was initially published, then he or she can sue for statutory damages, which can be as high as $150,000 per work infringed. That’s a pretty hefty potential fine for the unauthorized use of a photograph that, if it had been licensed prior to use, might not have earned the photographer enough for a crosstown taxi.

“Photographers are basically small businesses. They’re little men. But you have this powerful tool, which is copyright law,” said Kim, the freelance photographer. The question that copyright attorneys, media executives, and federal judges have been asking themselves for 2½ years is this: Is Richard Liebowitz wielding that tool responsibly? “He offers [his clients] nirvana, basically. He essentially offers them: I will sue for you, I don’t care how innocuous the infringement, I don’t care how innocuous the photograph, I will bring that lawsuit for you and get you money,” said attorney Kenneth Norwick. And the law allows him to do it. So is Liebowitz gaming the system by filing hundreds of “strike suits” to compel quick settlements? Or is he an avenging angel for photographers who have seen their livelihoods fade in the internet age? “They can call Richard Liebowitz a troll,” said Kim. “Better to be a troll than a thief.”...

Over the past 2½ years, Liebowitz has attained boogeyman status in the C-suites of major media organizations around the country. Like the villain in a very boring horror movie featuring content management systems and starring bloggers, his unrelenting litigiousness has inspired great frustration amongst editors and media lawyers fearful that they will be the next to fall victim to the aggravating time-suck known as a Richard Liebowitz lawsuit. And he is probably all of the things his detractors say he is: a troll, an opportunist, a guy on the make taking advantage of the system. He is also a creature of the media industry’s own making, and the best way to stop him and his disciples is for media companies to stop using photographers’ pictures without paying for them—and to minimize the sorts of editorial mistakes borne out of ignorance of or indifference to federal copyright law. “People should realize—and hopefully will continue to realize,” said Liebowitz, “that photographers need to be respected and get paid for their work.”"