Three More DMCA Cases of Note for Photographers

Followers of this blog know that photographers are eligible for damages under the Digital Millennium Copyright Act when an infringer removes copyright management information from a photograph to conceal an infringement. As a follow up to my October 13, 2010 blog entry, following are brief summaries of three more cases where courts have discussed awards to photographers for DMCA violations:

Schiffer Publishing. Ltd. vChronicle Books. LLC. 2004 US Dist. LEXIS 23052 (ED Pa. Nov. 12, 2004)

To recover for a violation of § 1202(b), a plaintiff must demonstrate that the defendant intentionally removed or altered CMI knowing, or having reasonable grounds to know, that the removal will aid infringement. 17 U.S.C. § 1202(b). In this case, the only copyright management information that Plaintiffs included with their work were notices of copyright that appeared on the inside covers of the Schiffer books. The individual photographs, which are the subjects of this action, did not contain any copyright management information whatsoever, either on or near the images themselves. At least one court, when presented with a similar situation, held that the defendant had not “removed “copyright management information within the meaning of § 1202(b). See Kelly v. Arriba Soft Corp., 77 F. Supp. 2d 1116, 1122 (C.D. Ca. 1999) (holding that language and structure of statute commanded that § 1202 (b) “applies only to the removal of copyright management information on a plaintiff’s product or original work”). Plaintiffs have not presented any authority to the contrary, and thus, this Court holds that, to be actionable under § 1202(b), a defendant must remove copyright management information from the “body” of, or area around, plaintiff’s work itself.

Gregerson v. Vilana Fin., Inc., CIV.06-1164 ADM/AJB, 2008 WL 451060 (D. Minn. Feb. 15, 2008)

Plaintiff asserts that Defendants’ willful removal of the digital and visible watermarks from his photos is a violation of 17 U.S.C. § 1202, thus entitling him to damages under 17 U.S.C. § 1203. 17 U.S.C. § 1202(b)(1), provides that “[n]o person shall, without the authority of the copyright owner or the law intentionally remove or alter any copyright management information.” 17 U.S.C. § 1202(c) defines copyright management information as “information conveyed in connection with copies . . . , including in digital form” and provides a list of such information including “the name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright,” § 1202(c)(3), and “[i]dentifying numbers or symbols referring to such information or links to such information,” § 1202(c)(7).

The text of § 1202 defines copyright management information broadly and specifically includes information conveyed in digital form. Accordingly, while it is uncertain whether the visible watermark providing Plaintiff’s website qualifies under § 1202(c)(7), Plaintiff’s digitally embedded watermark does meet the definition set forth in § 1202(c)(3). The digitally embedded watermark, “(c) Chris Gregerson 2003” on the Skyline photo and “(c) Chris Gregerson 2002” on the Kenwood photo, includes Plaintiff’s name and the notice of copyright. The plain text of § 1202(c)(3) unambiguously defines copyright management information to include protection for a digitally embedded watermark. However, even if the Court were to conclude that § 1202(c)’s definition of copyright management information was ambiguous and were to look to the legislative history and intent underlying § 1202(c), there is further support that a digitally embedded watermark constitutes copyright management information. In IQ Group, Limited. v. Wiesner Publishing, LLC, 409 F. Supp. 2d 587, 596 (D.N.J. 2006), Judge Joseph A. Greenaway, Jr., of the United States District Court for the District of New Jersey, engages in a lengthy evaluation of legislative history and intent and concludes that “Congress viewed a digital watermark as an example of copyright management information.”

17 U.S.C. § 1203 provides that this Court may award Plaintiff damages upon finding that Defendants violated § 1202. Plaintiff elected to recover statutory damages for Defendants’ violation of § 1202 under § 1203(c)(3)(B). Pl.’s 2d Am. Compl. Under § 1203(c)(3)(b), Plaintiff may recover “statutory damages for each violation of section 1202 in the sum of not less than $2,500 or more than $25,000.” The Court awards Plaintiff $5,000 for Defendants’ willful removal of the digitally embedded watermark in the Skyline photo.

Photo Resource Hawai’i, Inc. v. American Hawai’i Travel Inc. (D.Hawaii 2007)

Before the Court is Plaintiff Photo Resource Hawaii, Incorporated’s (“Plaintiff”) Motion for Entry of Default Judgment as to American Hawaii Travel Incorporated (“Motion”), filed October 23, 2007. Defendant American Hawaii Travel Incorporated (“AHTI”) has not responded to the Motion or otherwise appeared in this case. The Court finds this matter suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai‘i (“Local Rules”). . . .

Plaintiff also alleges that Defendants obtained the eight photographic works from a digital catalogue disk and intentionally removed or altered copyright management information from each work. . . .

Plaintiff also seeks $30,000.00 in damages under the Digital Millennium Copyright Act . . . .

Plaintiff has established that AHTI took the eight photographic works from a catalogue disk and removed or altered the copyright management information which appears on each image. Plaintiff established that AHTI violated § 1202 and Plaintiff is entitled to statutory damages of at least $2,500.00 per violation. This Court finds that Plaintiff’s request of $30,000.00 in statutory damages under the Digital Millennium Copyright Act is reasonable under the circumstances of this case.

This Court therefore RECOMMENDS that the Motion be GRANTED as to Plaintiff’s request for $18,000.00 in statutory damages under the Copyright Act and $30,000.00 in statutory damages under the Digital Millennium Copyright Act.

Do you need any more reasons to include your copyright management information in the form of a watermark on your photographs and/or in the metadata of your photo files?

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Carolyn E. Wright

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