Fortuity is a fundamental principle underlying liability insurance. For this reason, intentional acts, as well as liabilities arising from an insured's contractual commitments, are generally excluded from coverage.

At the same time, copyright infringement is one of the covered "offenses" which is enumerated in the "advertising injury" portion of a typical Commercial General Liability ("CGL") policy. In many cases, a claim for copyright infringement arises when a licensee is alleged to have breached the terms of the license agreement under which the licensee was given the right (often limited by duration, type of media and other limitations) to exploit the underlying work. In such circumstances, the copyright licensee will seek to obtain coverage from its insurer.

The cases involving coverage disputes illustrate an important intersection between copyright and insurance law. This article analyzes the pertinent cases in this area, provides an analytical framework for evaluating coverage problems and suggests tools that policyholders can use to obtain coverage in difficult cases.

Peter S. Selvin is a partner, and Jed I. Lowenthal is an associate, in the Los Angeles office of Loeb & Loeb LLP. Mr. Selvin is listed in the 2007 edition of Best Lawyers in America for litigation and insurance law and can be reached at . Mr. Lowenthal can be contacted at . The views expressed in this article do not necessarily reflect those of Loeb & Loeb LLP or those of its clients.