Right of Contribution for Infringement

The Copyright Act makes infringers jointly and severally liable for plaintiff’s monetary losses. (Defendant's profits are subject to several liability). The Act does not contain any provisions providing for contribution and not surprisingly, the courts have been uniform in holding that no such rights exist as a matter of federal law. Perhaps surprisingly, federal courts have held state law may not apply either, a conclusion I question.

The early common law precluded contribution among joint tortfeasors, although there is evidence that the rule, initially established in the 1799 English opinion in Merryweather v. Nixan,was intended to apply only in cases of intentional wrongdoing. The common law has, however, been abrogated in most states, either by statute or by decisional law. Federal courts, post-Erie Railway Company v. Tompkins,have been held to have no ability to create a federal common law of contribution for federal statutes, with certain exceptions, such as admiralty law and Section 10b-5 of the Securities Exchange Commission Act of 1934.

This leaves state law. In two opinions, Lehman Bros., Inc. v. Wu, 294 F. Supp.2d 504 (S.D.N.Y. 2003) and Johnston v. Smith, 43 USPQ2d 1538 9N.D. Ga. 1997), federal courts have rejected state claims of contribution for damages paid for copyright infringement, holding such rights may exist only under the Copyright Act; since the Copyright Act does not provide such a right, the claim was rejected. These rejections did not use preemption as the decisional ground, but no other basis seem apparent: if state law did not provide for such relief, the court would have dismissed on that basis. By contrast, in patent cases, where the same no contribution rule obtains, some courts have analyzed the matter under a preemption analysis, albeit with little discussion and out of an odd belief that contribution would conflict with the existence of a federal cause of action for contributory infringement. How state contribution would conflict with federal contributory infringement is not explained and it is difficult to see how it would: contribution only comes into play after plaintiff has been paid off, and one defendant demands the other defendant pay its proportional share of the award. That’s true even when the first defendant, who pays 100% of the damages to plaintiff is a contributory infringer, and the second defendant against whom contribution is sought, is the direct infringer.

Once plaintiff’s damages award for violation of the federal tort is satisfied, the federal interest is extinguished; a state court contribution action does not arise under the Copyright Act and does not conflict with any federal purpose, nor may Congress be deemed to have occupied the field for such concerns. The objective of joint liability is to ensure that plaintiff is able to recover from whomever it can tag; once plaintiff has recovered, the Copyright Act does not care whether the defendants then go into state court and duke it out over contribution.

There are, however, a few countervailing arguments, arguments that seem to have won the day, at least in federal court: first, federal law, which creates the right, has determined that any one infringer is liable regardless of the acts of others, presumably reflecting a federal policy of imposing sole liability at plaintiff’s choice: second, to say that A shall be liable to B is to expressly create a cause of action; thus, to say Defendant A is liable to contribution to Defendant B for copyright infringement is to create a cause of action, something which Congress only is empowered to do for violation of a federal right. Third, and following Judge Posner, Economic Analysis of Law 189-190 (6th ed. 2003),if defendants are aware they will be solely liable to infringement, they may act more carefully than if they believe they will ultimately be liable only for a proportional share. A final reason may also be advanced, also mentioned by Judge Posner, judicial costs: a right of contribution imposes an additional burden on courts to adjudicate the contribution claim. While it is difficult to see why federal courts should care about increased burdens on state courts, especially where state law provides for a right of contribution broad enough to cover copyright infringement, the answer may be that all of the opinions in which the availability of contribution was reached have involved third-party complaints brought in federal court as an adjunct to the infringement claim; one can, therefore, appreciate how federal judges might give short schrift to the right under such circumstances.