More Blurred Lines: On Downstream Infringement and the Disgorgement of Profits
In copyright and trademark matters, one of the most challenging aspects can be determining the extent that downstream infringers - those companies one or more steps removed from the creative work at issue - may have benefited when someone upstream has usurped another's work. For instance, a composer, a performer, and a record company may each be liable for the infringement of a composition. However, the trial outcomes of these types of cases are often contradictory. This article aims to help reconcile observed differences in the treatment of downstream infringers.
In the les Nouvelles article "More Blurred Lines: On Downstream Infringement and the Disgorgement of Profits," Vice President Peter Rybolt examines three well-known cases from the world of recorded music - including the 2015 Blurred Lines decision - highlighting unexplained differences in the treatment of record companies when songwriters are accused of infringement. He then generally reviews how firms capture the value of an innovation - and thus from infringement, and illustrates how that understanding can lend guidance to juries in assessing the profits to be disgorged.