This claim is not a valid excuse for copyright infringement. The copying of copyrighted material without permission constitutes infringement, whether the infringer knew the photo was copyrighted or not. As the Ninth Circuit Court of Appeals put it, “[E]ven where the defendant believes in good faith that he is not infringing a copyright, he may be found liable.”^[1]

Such a claim could result in reduced statutory damages if the infringement is found to be not willful or to be “innocent.” Photographers can forestall this kind of claim by always posting a copyright notice with their work.

1. Pye v. Mitchell, 574 F. 2d 476, 481 (9th Cir. 1978).