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: https://ecf.nysd.uscourts.gov/doc1/127120350762

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. https://www.photoattorney.com/stopping-the-innocent-infringement-defense/

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: https://www.photoattorney.com/watermarks-can-be-music-to-your-ears/

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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: https://dmca.copyright.gov/osp/. For example, when you search for “Tumblr,” you’ll see listings for several matching names to find the correct one. When you click on “Tumblr.com,” this page appears: https://www.copyright.gov/onlinesp/list/a_agents.html 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 https://www.copyright.gov/onlinesp/list/a_agents.html. 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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Another Reason to Post Watermarks on your Photos

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!

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Copyright Office Extends Comment Period for Section 512 Study

The U.S. Copyright Office has published a Federal Register notice extending the deadlines for public comment in connection with the Office’s study on section 512 of Title 17. The Office requested additional public comments, as well as the submission of empirical research studies assessing issues related to the operation of section 512 on a quantitative or qualitative basis, on November 8, 2016. Public comments are now due no later than 11:59 p.m. Eastern time on February 21, 2017, and empirical research studies are now due no later than 11:59 p.m. Eastern time on March 22, 2017. Additional information, including instructions on how to submit a comment, is available here.

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Copyright Office Announces Roundtable Discussions for Section 512 Study

The United States Copyright Office is announcing two two-day public roundtables to gather additional input for its section 512 study. The roundtables, to take place in New York, New York on May 2 and 3, 2016, and Stanford, California on May 12 and 13, 2016, will offer an opportunity for interested parties to comment on topics relating to the DMCA notice-and-takedown system, as set forth in the Notice of Inquiry issued by the Office on December 31, 2015. Those seeking to participate in the roundtables should complete and submit the online form available at http://copyright.gov/policy/section512/public-roundtable/participate-request.html. Requests to participate must be received by the Copyright Office no later than April 4, 2016. For further information about the section 512 study and roundtable, please see http://copyright.gov/policy/section512/.

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DMCA Takedown Notice Survey Upcoming Deadline

Has your copyrighted work been used on the Internet without your permission?

Are you a photographer, illustrator, graphic artist or designer, or other visual creator?

Are you an artist’s/photographer’s agent or representative, or an image licensing agent?

Have you discovered infringing use of your images, or the images you license, on the Internet and used the DMCA Takedown Notice procedure to have the images removed from a website? If so, please report on your experience.

The US Copyright Office is conducting a study about the efficacy of the DMCA Takedown Notice procedure. The following group of associations:

American Photographic Artists
American Society of Media Photographers
Digital Media Licensing Association
Graphic Artists Guild
National Press Photographers Association
North American Nature Photography Association
Professional Photographers of America
PLUS (The Picture Licensing Universal System)

is working together to conduct a survey of image rights holders and licensing professionals to gather information for the Copyright Office study.

Please help this advocacy effort by participating in this anonymous short survey.

The survey will close at midnight, Sunday, March 21, 2016.

SURVEY LINK https://www.surveymonkey.com/r/DMCAvisualsurvey

Thank you!

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Copyright Office Extends Comment Period for Section 512 Study

The United States Copyright Office has published a Federal Register notice extending the deadlines for public comment in connection with the Office’s study on section 512 of Title 17. The study was announced in a Notice of Inquiry issued by the Office on December 31, 2015. Initial written comments in response to the Notice are now due no later than 11:59 p.m. Eastern Time on April 1, 2016. Additional information, including instructions on how to submit a comment, is available here.

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Ninth Circuit Confirms that You Consider Fair Use Before Sending A DMCA Takedown Notice

As reported way back in August 2008, a judge ordered in the Lenz v. Universal Music case that copyright owners must consider whether an unauthorized use of a copyrighted work qualifies as fair use before sending a DMCA takedown notice (check my article how to do that).

In the case, Stephanie Lenz filed suit under 17 U.S.C. § 512(f)—part of the Digital Millennium Copyright Act (“DMCA”)— against Universal Music Corp., Universal Music Publishing, Inc., and Universal Music Publishing Group (collectively “Universal”).  She alleged that Universal misrepresented in a takedown notification that her 29-second home video constituted an infringing use of a portion of a composition by the Artist known as Prince, which Universal insists was unauthorized by the law. Although Universal Music argued that fair use is difficult to determine, the district court found that to not be an excuse.

Universal appealed the decision, but the Ninth Circuit Court of Appeals agreed with the lower court’s ruling, stating:

“We hold that the statute requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.”

Fortunately, the Ninth Circuit recognized that if “a copyright holder forms a subjective good faith belief the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder’s belief even if we would have reached the opposite conclusion.”

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