Vicarious infringement is a form of secondary liability for direct infringement based on the common law principle of respondeat superior.
An individual can be held responsible for the actions of infringement committed by another person if they had the authority and ability to control the infringing activities, and also had a direct financial interest in those activities. It is necessary to prove direct infringement in order to claim vicarious infringement; but, the alleged infringer does not need to have intent or knowledge of the infringement.
The concept of vicarious infringement is similar in both trademark and copyright contexts. However, trademark infringement cases usually require the alleged infringer to have more control or involvement in the infringing activity than in cases involving copyright infringement.
For further discussion of the concept of vicarious infringement related to both copyright and trademark: See, e.g.: Fonovisa v. Cherry Auction, Inc., Hard Rock Cafe v. Concession Services, Inc., and Gershwin Publishing Corp. v. Columbia Artists Management, Inc.
The concept of vicarious infringement takes on additional importance in the context of the Internet. For a case discussing vicarious infringement related to the Internet, see Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd.
[Last updated in August of 2024 by the Wex Definitions Team]
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