Does removing photo credits constitute copyright infringement? MANGO v. BUZZFEED

Does removing photo credits constitute copyright infringement? MANGO v. BUZZFEED

The Digital Millennium Copyright Act is a law that was introduced in the United States in 1998 to update the Copyright Law of the United States.  The Copyright Law was written long before inventions such as computers and the internet existed.  The Digital Millennium Copyright Act was intended to update the copyright law to deal with these new technologies.  The Digital Millennium Copyright Act deals with many different issues, in this blog post we will review the protections granted to copyright management information.

17 U.S. Code § 1202 of the DMCA protects the integrity of copyright management information (CMI).  CMI is defined by the DMCA as identifying information attached to a copy of a copyrighted work.  CMI includes (1) the title of the work, (2) the identity of the author, (3) the identity of the copyright owner, (4) terms and conditions related to the use of the work, and several other categories of information.  17 U.S. Code § 1202(c)

Using false CMI to knowingly induce, enable, facilitate, or conceal copyright infringement is prohibited under 17 U.S. Code § 1202(a).  Removing or altering copyright management information, without the permission of the copyright owner is prohibited by 17 U.S. Code § 1202(b).  The distribution of copyrighted works whose CMI has been removed is also prohibited.  The statute seems pretty clear, how ever there are some nuances to how that statute can be applied in real life situations.  It is helpful to study case law to better understand how courts will apply the statute to the facts of a case.

GREGORY MANGO, v. BUZZFEED, INC., 19-446-cv (2nd Cir. 2020) illustrates how courts have interpreted the DMCA’s prohibition on CMI alteration.

Plaintiff in this case is a freelance photographer who regularly licenses his photographs to newspapers. The subject of one of Plaintiff’s photographs was Raymond Parker, a plaintiff in a discrimination lawsuit against the City of New York.  In January 2017, the New York Post licensed Plaintiff’s photograph of Parker and published it along with an attribution to Plaintiff.

Defendant d is an online media company that produces news, entertainment, and lifestyle content on its websites and various social media platforms. Three months after the New York Post article, Defendant published an article about Parker and included Plaintiff’s Photo without permission.  Defendant’s article attributed the photograph to someone other than Plaintiff.

In 2019 Plaintiff filed a two-count complaint against Defendant, alleging (1) copyright infringement, and (2) removal or alteration of CMI under the DMCA, 17 U.S.C. § 1202(b).  Plaintiff sought statutory damages of $30,000 for copyright infringement, $5,000 for the DMCA claim, and attorneys’ fees  under 17 U.S.C. § 505.  The district court ruled in favor of Plaintiff, and awarded $8,750 in statutory damages as well as $66,942.53 in attorneys fees and costs.  Defendant appealed the portion of the award of based on the DMCA claims to the COurt of Appeals for the Second Circuit.

On appeal the Defendant’s argument was that it cannot be held liable under the DMCA because there was no evidence that it knew its conduct would lead to future, third-party infringement of Plaintiff’s copyright.  The Second Circuit held that the district court correctly applied the DMCA. The district court found that Defendant (1) distributed the Photo knowing that Plaintiff’s attribution had been removed or altered without Plaintiff’s permission, and (2) distributed the Photo with an attribution to someone else knowing that doing so would conceal the fact that Defendant did not have authority to use the Photo.  The Second Circuit affirmed the district court’s decision because the plain language of the DMCA does not require a Plaintiff to show a Defendant knew altering CMI would lead to third party infringement.

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