A DMCA Case of Note for Photographers

While the Digital Millennium Copyright Act (“DMCA”) is relatively new as far as statutory law is concerned, courts across the country have found that watermarks appearing on photographs constitute the “copyright management information” (“CMI”) protected by the DMCA.  Check my July 7, 2007 blog entry for background information and for the definition of CMI.

One such case is McClatchey v. The Associated Press.  There, Ms. McClatchey had taken a photograph of the mushroom cloud created by the crash of United flight 93 on September 11, 2001.  The Associated Press wanted to write a story about Ms. McClatchey and her photo, so a writer and photographer went to Ms. McClatchey’s home.  Ms. McClatchey contended in her lawsuit that the AP photographer, under false pretenses, took a picture of her photograph and cropped it to remove Ms. McClatchey’s copyright notice.  The AP photograph allegedly was distributed without Ms. McClatchey’s permission.

The AP argued that it was entitled to summary judgement on several grounds (not addressed here), including Ms. McClatchey’s DMCA claim.  But the court disagreed:

Defendant contends that the [DMCA] is not applicable because Ms. McClatchey’s copyright notice was not “digital.” In IQ Group, Ltd. v. Weisner Publishers, LLC, 409 F. Supp.2d 587, 597(D.N.J. 2006) (involving removal of a logo and a hyperlink), the Court explained that under Section 1202, it must determine whether the information allegedly removed “functioned as a component of an automated copyright protection or management system.” Ms. McClatchey testified in her deposition that she used the My Advanced Brochures software program on her computer, in a two-step process, to print the title, her name and the copyright notice on all printouts of the photograph. The Court finds that this technological process comes within the digital “copyright management information” as defined in the statute.  Moreover, Section 1202(c) defines the term broadly to include “any” of the information set forth in the eight categories, “including in digital form.”  To avoid rendering those terms superfluous, the statute must also protect non-digital information.

. . .

Under Plaintiff’s version of the facts, AP intentionally cropped the copyright notice out of the picture before distributing it to subscribers. This appears to be precisely the conduct to which Section 1202(b) is directed. As Plaintiff notes, the nature of APs’ business is to provide stories and pictures for use by its members and subscribers. Thus, a reasonable fact finder could conclude that by cropping out the copyright notice, Defendant had the requisite intent to induce, enable, facilitate or conceal infringement.

McClatchey v. The Associated Press, 2007 U.S. Dist. LEXIS 17768 (W.D. Pa 2007).

Therefore, it’s always best to include your copyright management information on your photographs whenever possible to recover for infringements!

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