Television Sponsor and Advertising Agency Held Vicariously Liable for Copyright Infringement–Davis v. E.I. DuPont de Nemours & Co.

DuPont sponsored a dramatization of Edith Wharton’s novel Ethan Frome presented by the CBS television network. Petitioner claimed an infringement of his earlier copyrighted dramatization of the same novel and sought a declaration of liability against CBS, the producer of the program, DuPont, and its advertising agency, Batten, Barton, Durstine & Osborn, Inc. (BBDO). Although DuPont and BBDO were notified before the performance of the possibility of copyright infringement liability and could have stopped the producers from using petitioner’s play, they made no attempt to interfere. In petitioner’s action in the federal district court, DuPont and BBDO contended that they were not proper parties to any suit for infringement because they had not participated in the production. The court found a “substantial and unfair use” of petitioner’s production, and held that all defendants were liable for infringement under the Federal Copyright Act. Although DuPont and BBDO had not participated in the production, they were nevertheless held vicariously liable because they had a financial interest in an infringement by parties over whose programming they had the power of control.