Does Linking to Photographer’s Website Void DMCA Claim for Removing Watermark?

Evan Brown over at Internet Cases has an informative post about a recent New York copyright infringement case where the alleged infringer (“Tibi”) cropped the photo at issue to remove the photographer’s watermark of “(c) Matilde Gattoni Photography, 2016, All rights reserved”) before posting the photo on Tibi’s Instagram page. Tibi included with its Instagram post an image of a camera, a colon, and a hyperlinked reference to Gattoni’s Instagram page. (Note only that the copyright symbol ©, the word “copyright” or the abbreviation “copr.” meets the formal definition of copyright notice –not a “(c),” along with the year of first publication and the copyright owner’s name. However, what constitutes copyright management information (CMI) is broader.)

The court tossed the photographer’s copyright infringement claim because she didn’t have a registration prior to filing suit (so timely register your copyrights).

The photographer also made a DMCA 1202(b) claim against Tibi. That statute provides:

No person shall, without the authority of the copyright owner or the law—

(1) intentionally remove or alter any copyright management information,

(2) distribute or import for distribution copyright management information knowing that the copyright management information has been removed or altered without authority of the copyright owner or the law, or

(3) distribute, import for distribution, or publicly perform works, copies of works, or phonorecords, knowing that copyright management information has been removed or altered without authority of the copyright owner or the law, knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title

(emphasis added).

Therefore, actions that violate any of the clauses of this statute (as indicated by the “or” at the end of the 2nd clause) is enough to violate the statute as a whole.

Tibi argued that its linking to the photographer’s Instagram account removed any required “intent” for the photographer to be successful on her DMCA claim. But the court didn’t buy it. While linking to the photographer’s account may “diminish” the photographer’s claim, it didn’t eliminate it, at least at this phase of the litigation.

The parties settled soon after the court allowed the photographer’s claim to go forward. The court’s order is available here:

Here’s why this ruling is important to photographers: it’s easy for an infringer to copy a photo from the web and paste it elsewhere. The photo is then separated from any CMI posted next to the photo. Since many infringers claim that they didn’t know that a photograph was protected by copyright, their argument is hollow if the photographers CMI is on the photo. In addition, have a copyright notice posted with a photo prevents an infringer from claiming innocent infringement.

Only the copyright owner should decide whether her photo on the web without her CMI watermark. Kudos to this photographer for fighting for her rights.

To learn more about DMCA claims, check this blog entry:

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Copyright Office Proposes Rule to Establish a Group Registration for Unpublished Works

The United States Copyright Office is proposing to create a new group registration option for a limited number of unpublished works. The proposed rule would replace the current “unpublished collections” registration option. Among other things, applicants would be required to submit an online application and upload their works to the electronic registration system, although the Office may waive these requirements in exceptional cases.

The proposed rule offers a number of significant benefits compared to current practices: it would allow the Office to more easily examine each work for copyrightable authorship, to create a more robust record of the claim, and to improve the overall efficiency of the registration process.

The notice of proposed rulemaking and instructions on how to submit a comment are available here. Written comments must be received no later than November 13, 2017, at 11:59 p.m. Eastern time.

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Finding the DMCA Agent for a Website

The Digital Millennium Copyright Act (“DMCA”) is a wonderful tool for fighting copyright infringement. Check this article for information on how to use it.

Fortunately, the U.S. Copyright Office has made it easier to find the DMCA service providers’ agents for you to notify about claimed infringements. Specifically, under the DMCA, certain internet service providers (for example, those websites that allow users to post or store material on their systems and search engines, directories, and other information location tools websites) must maintain an active registration of their agents with the Copyright Office to be eligible for safe harbor protection from copyright infringement liability. While the service provider must make the agent’s current contact information available on its website to the public, it may not be easy to find. Fortunately, the service provider also must provide the same contact information to the Copyright Office, which maintains a centralized online directory of designated agent contact information for public use.

Therefore, if you can’t find an agent’s contact information on the service provider’s website, you can search the Copyright Office’s database here: For example, when you search for “Tumblr,” you’ll see listings for several matching names to find the correct one. When you click on “,” this page appears: with the name and address for Tumblr’s DMCA agent. Contact this agent to ask Tumblr to remove any of your photos being infringed there.

Note there is a transition period between the old and new agent directories. Any service provider that has designated an agent with the Copyright Office prior to December 1, 2016, must submit a new designation electronically using the online registration system by December 31, 2017. The old directory is available at All current agents should be on the new directory by 2018.

While copyright infringement is rampant, at least there are more and better tools for fighting it.

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U.S. Copyright Office Releases Updated Version of the Compendium of U.S. Copyright Office Practices, Third Edition

Acting Register of Copyrights Karyn Temple Claggett today released an updated version of the Compendium of U.S. Copyright Office Practices, Third Edition. It is available on the Office’s website at This update is effective as of September 29, 2017, and it is the governing administrative manual for registrations and recordations issued by the U.S. Copyright Office on or after that date.

The Compendium is the administrative manual of the Register of Copyrights concerning the mandate and statutory duties of the Copyright Office under Title 17 of the United States Code. See 37 CFR. § 201.2(b)(7).

This update was initially released in draft form on June 1, 2017. The Office received comments on the draft from three organizations and four individuals. After carefully reviewing these comments, the Office revised twenty-one sections of the Compendium. For information concerning these revisions, read more. A complete list of all sections that have been added, amended, revised, or removed is posted on the Office’s website.

This version of the Compendium has been reformatted to improve readability for online and offline users. The update also includes improved hyperlinks to provide readers with direct access to the statute, regulations, and resources on the Office’s website, as well as improved cross-references between chapters.

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Copyright Office Begins Release of Refreshed and Updated Circulars

The U.S. Copyright Office today begins its release of refreshed and updated circulars to provide up-to-date and authoritative copyright information for a broad general audience. This release of 31 circulars represents a wide range of topics including copyright fundamentals, core Office procedures, Licensing Division practices, and work-specific application tips. These circulars are subject to two notable changes: (1) reformatting for optimal online reading and (2) revision to conform to the third edition of the Compendium of U.S. Copyright Office Practices. Circulars have served as a gateway to copyright law and Office practices since the late 1800s, and this is the first design update in more than a decade.

Remaining circulars will be released on a rolling basis through the end of 2017. The updated circulars are available here, and a table of topics can be found here.

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Can an Infringer Purchase a Retroactive License?

Many infringers attempt to purchase a license after the infringing act began. Does the “retroactive license” absolve the infringement?

No, said the court in Palmer/Kane, LLC v. Rosen Books Works, LLC, Case No. 15-cv-7406 (SD NY Aug. 31, 2016). There, Rosen, a book publisher, had regularly licensed photos, including Palmer/Kane’s, from the stock photography agency, Corbis, for use in its books. As a “matter of practice,” Rosen frequently would use images prior to obtaining licenses for them. Palmer/Kane therefore sued Rosen for infringing its copyrights for 19 images, which Rosen allegedly had used in 21 publications either without a valid license or beyond the scope of the license it had been granted.

For one of Palmer/Kane’s images at issue in the case (Image No. 2), Rosen had used the photo in a book, printing 3,000 copies in 2006 and 2,000 in 2007, without first obtaining a license. In February 2008, Rosen secured a license from Corbis for distributing 10,000 copies of Image No. 2 in the book. Rosen later printed another 2,100 copies of the book with Image No. 2.

Course of Dealing Defense

Rosen claimed that its “pre-license” use was consistent with industry custom and the parties’ course of dealing. Even Corbis agreed that it is customary practice in the book publishing industry for publishers to reproduce copyrighted stock photography before obtaining licenses for such use. However, the court held that “custom” and “course of dealing” cannot displace rights conferred by the copyright laws. See Dun & Bradstreet Software Servs., Inc. v. Grace Consulting, Inc., 307 F.3d 197, 211 (3d Cir. 2002) (“A defense of industry custom and practice in the face of the protective provisions of the Copyright Act could undermine the purposes and objectives of the statute and reduce it to rubble.”); Weinstein Co. v. Smokewood Entm’t Grp., LLC, 664 F. Supp. 2d 332, 348 (S.D.N.Y. 2009) (“[N]otwithstanding plaintiff’s claims about ‘custom and practice’ in the entertainment industry, federal copyright law dictates the terms by which an exclusive license can be granted.”).

Significantly, the court stated:

Infringement is infringement, regardless of what Corbis and Rosen may have chosen to call it.

Retroactive License Defense

Rosen also asserted that even if the use constituted an infringement, the February 2008 license retroactively cured the infringement. But the court rejected this defense, as well, noting that “a license or assignment in copyright can only act prospectively.” See Davis v. Blige, 505 F.3d 90, 104 (2d Cir. 2007).

While some other courts have recognized retroactive licenses, it really is a resolution for claims of infringement. Here, Rosen was not entering into a “negotiated settlement” with the February 2008 license. Neither Rosen or Corbis had acknowledged that infringement had occurred. The court warned against conflating settlements and retroactive licenses:

Licenses and assignments function differently from settlements and releases, and the use of the term “retroactive license” for “settlement” or “release” by the parties causes unnecessary confusion and potentially creates legal mischief.

In addition, the February 2008 license had a “License Start Date” of February 20, 2008, so the license could not have covered the 2006 and 2007 uses. The court then found as a matter of law that Rosen had infringed Palmer/Kane’s Image No. 2.

So don’t let infringers try to exonerate their infringements with a “retroactive license.” Stand up for your rights, regardless of their excuses.

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Don’t be bound by

The copyright world is abuzz about a new copyright registration service at But don’t be fooled — there’s a reason that Binded can claim:

What used to take 20 minutes on, takes 9 seconds on Binded.

That’s because Binded doesn’t make sure that it’s registering your copyright correctly.

Most important, Binded never asks whether you are registering “published” photographs, and, if so, when and where they were first published. Binded doesn’t warn you that a published photos can registered as a group only if they were published within the same calendar year.

In its FAQ, Binded states: “If you’ve already published your image you still benefit by having a copyright record and our monitoring feature.” Binded doesn’t explain that using its service will not give you a valid copyright registration. You don’t need Binded to give you “proof of creation.” Other companies offer an image search for free, so you don’t need Binded’s “monitoring.”

Even if you’re registering unpublished photos, Binded doesn’t ask for the year of completion (the year that you took the most recent photograph of the group of photos being registered). While Binded maybe able to derive the year by the metadata of the photos, that’s not always correct.

Binded also doesn’t ask what is your nation of citizenship or domicile, which is required by the US Copyright Office. While Binded may make a guess from your address, that’s not always the same. Binded reveals towards the bottom of its FAQ page that its service is not for “work for hire” or collaborative works. It’s not for derivative works, either.

Binded apparently has plans to try to collect damages for infringement of your photos. It warns that it can change its terms of service at any time, so it may try to lock you into using its infringement services.

Note that once you use Binded’s service, your photos will forever be on the bitcoin blockchain.

Registering using the eCO sysem is not difficult or lengthy (especially for unpublished photos) and there are good articles on how to do it. It can be done quickly especially after you create a template for your registrations.

The first thing that an infringer will do is to attempt to invalidate your registration. You might as well keep your $$$ and save your time before registering your copyrights incorrectly.

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Copyright Alliance Seeking Pro Bono Copyright Program Applicants

The Copyright Alliance has announced a new pro bono program “to provide free legal representation to individual creators and small businesses in lawsuits involving cutting edge copyright issues.” The program will use Columbia Law School students under the supervision of the New York-based law firm of Cravath, Swaine and Moore LLP attorneys David Marriott and David Kappos. Interested persons should sign up online.

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Copyright Office Releases Redlines for Draft Compendium

The U.S. Copyright Office today announces the posting of redlines comparing the current version of Compendium of Copyright Office Practices (Third), which was released December 22, 2014, and the public draft of Compendium (Third), which was released June 1, 2017. The redlines are available on the revision history portion of the Compendium webpage. They are intended to assist members of the public in understanding the amendments and revisions contained in the public draft. The Office previously released a list of all sections that have been added, amended, or removed in this update, and a set of release notes providing a brief summary of the substantive revisions. The Office has extended the deadline to provide comments until July 30, 2017. Comments may be submitted on the Office’s website.

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Copyright Office Introduces Online Supplementary Registration

The U.S. Copyright Office announces that, as of July 17, it will for the first time begin accepting applications for supplementary copyright registration—used to correct or amplify information set forth in a basic registration—through the Office’s online registration system. Applicants will generally be required to file applications for supplementary registration online. The Office has also made other changes to the practices relating to supplementary registration, described in a final rule published in the Federal Register today. To help ease the transition to online filing, the Office will provide guidance in updates to the Compendium of U.S. Copyright Office Practices, as well as an online tutorial.

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