One of the most commonly misunderstood aspects of copyright law
is the significance of intent. The elements of direct copyright
infringement are (1) the plaintiff's ownership of a valid
copyright in a work and (2) the defendant's copying of
protectable expression from that work. The defendant's
intent is not part of this analysis. One hears the term
"innocent infringer" thrown around, but this moniker is
of far less value than is often imagined.
Take, for example, sculptor Robert Davidson's recently-filed
case against the US Postal Service (USPS) in the Court of Federal
Claims. The USPS licensed a photograph of the Statue of
Liberty from Getty Images and used the photo on about 4 billion
stamps. Unfortunately, owing either to a labeling error by
Getty or a misunderstanding by the USPS staff, the image used was
not in fact of the Statue of Liberty, but of Davidson's
allegedly "sexier" version that stands outside a hotel in
Las Vegas. Nobody is seriously arguing
