- posted: Jul. 15, 2021
- Todd McMurtry
- Intellectual Property
- advertising injury, CGL policy, comprehensive general liability policy, infringment, insurance
In the digital age, intellectual property holders have become increasingly aggressive in litigating against anyone believed to have unlawfully used copyrighted material. If you are engaged in any activities that could possibly be viewed as infringement, you need to be sure that your commercial general liability insurance policy provides adequate coverage. That, in turn, depends on the language of your specific CGL policy.
The issue of whether CGL policies should cover intellectual property claims has evolved greatly over the past few decades. Copyright infringement had long been considered an “advertising injury” and insurance companies were required to cover policyholders who were accused of stealing ideas or infringing copyrights in their advertising. That started changing when internet communication became the norm, overtaking print media. The internet made it easier for one party to find and use someone else’s material, so the number of infringement claims skyrocketed, resulting in higher defense costs and claim payouts for insurance companies. In response, insurers began changing their CGL policy language to exclude or limit coverage for copyright claims.
Today, many CGL policies still contain language saying that the policyholder is covered for advertising injuries, including copyright infringement. However, the circumstances under which these policy provisions apply have been narrowed significantly. Generally, CGL policies will require the insurer to cover the policyholder in copyright litigation only if all three of the following are true:
- The plaintiff alleges an advertising injury that is specifically enumerated in the policy
- The advertising activity caused injury to the plaintiff
- The policyholder was engaged in advertising when the alleged injury occurred
These three parts of an infringement claim depend entirely on the facts of the specific case, which makes it very difficult to definitively conclude in advance that the CGL policy language is sufficient. Because CGL coverage for intellectual property infringement has been steadily eroded over time, your business may want to consider purchasing IP insurance that is designed specifically to cover you if you are accused of infringing on someone else’s copyright.
About Finney Law Firm, LLC
Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation. FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.
FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.
For more information about Finney Law Firm, visit finneylawfirm.com.
Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.
