Negligence as defense to infringement

Is anyone aware of any case law that deals with the "we goofed" defense to copyright infringement?

Consider the following hypothetical:

Publisher uses various works in its publications and generally uses stock photos or obtains permission from a copyright owner. Publisher's new employee, not properly trained, uses photos that are not stock photos in a commercial project without the copyright owners' permission.

Assume that Employee had no "bad intent" in the sense that he/she meant to infringe, but Publisher's failure to train indisputably caused the infringement.

Question: Can publisher show innocent infringement to reduce statutory damages? In the alternative, can Publisher assert that it was merely negligent as a defense to a claim of willful infringement? There's a lot of discussion of what level of intent is required to show bad faith, but there's not much I've been able to find involving "inadvertant" infringements that could have been avoided if the infringer were not negligent in its screening procedures.

It seems, on the one hand, that a court would be inclined to be lenient with an infringer that generally obeys copyright laws in its business; on the other hand, it strikes me that the "you ought to know better" principle might apply, too. Any thoughts/case law?

Thanks,

Kevin Grierson

Kevin W. Grierson
Willcox & Savage, P.C.
One Commercial Place, Ste. 1800
Norfolk, Virginia 23510

mailto:kgrierson[_at_]wilsav.com
ph: 757/628-5603 fx: 757/628-5566
http://wilsav.com
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