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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