The copyright world is abuzz about the recent U.S. Court of Appeals for the Ninth Circuit opinion in Mavrix Photographs, LLC v. LiveJournal, Inc. The primary interest is that the court held that LiveJournal may not be eligible for the DMCA 17 U.S.C. § 512(c) safe harbor for users’ posting of copyrighted photographs on its “ohnotheydidnt” website when LiveJournal’s moderators first reviewed those submissions.
Even if LiveJournal proves that the photographs were posted at the direction of the user (thus meeting one of the requirements for the § 512(c) safe harbor), LiveJournal must also show that it lacked both actual and red flag knowledge of the infringements. See 17 U.S.C. § 512(c)(1)(A). Actual knowledge is when the service provider had subjective knowledge. For example, actual knowledge can come from a DMCA takedown notice. So it’s usually good to send a takedown notice to the internet service provider when you find an infringement.
Red flag knowledge is whether a reasonable person would objectively know of the infringements. In the Mavrix case, many of the photos at issue had watermarks on them, such as those identifying Mavrix’s website, “Mavrixonline.com.” The court held that LiveJournal may therefore be liable for copyright infringement for having red flag knowledge from the watermarks that its use of the photographs was unauthorized.
This is another one of the many reasons to post watermarks on your photos!Check Photo Attorney on Lynda.com, in the Lynda.com Article Center, and on Twitter!