On August 13, 2020, the Second Circuit handed down a significant ruling which will make it much easier for artists to sue over the removal of copyright management information (CMI). The case is Mango v. Buzzfeed, Inc. 1 The majority of the facts of the case are not in dispute.
- Plaintiff freelance photographer Gregory Mango took a picture of Raymond Parker, the “lead figure” in a civil suit brought against New York City alleging discrimination by the NYPD. 2
- Mango licensed the photo to the New York Post. 3
- The New York Post credited Mango as photographer just below the photograph, known in the trade as a gutter credit. 4
- Buzzfeed reporter Michael Hayes downloaded the photo from the New York Post website, without obtaining a license from Mango. 5
- Hayes removed Mango’s name from the photo and substituted the name of Parker’s (not Mango’s) attorneys, Fisher and Taubenfeld. 6
The only real dispute is that Hayes contended he got permission for Raymond Parker’s attorneys to use the photo. “Parker’s attorney did not recall such a conversation, but said she had difficulty imagining that she gave Hayes ‘permission to use a picture that [she] had no authority to give permission for.’” 7
“Mango filed a two-count complaint against BuzzFeed in the U.S. District Court for the Southern District of New York, alleging (1) copyright infringement under the Copyright Act, (citation omitted) and (2) removal or alteration of CMI under the DMCA.” 8
Buzzfeed conceded the copyright infringement claim, but disputed the DMCA claim. The District Court awarded $3,750 in statutory damages on the infringement claim, $5,000 on the DMCA claim, and $66,942.53 in attorneys fees and court costs. 9
Ouch. Would have been much cheaper just to get a license, eh?
Buzzfeed only appeals the verdict as to the DMCA claim. 10
At issue is section 1202(b) of the Copyright Act. It provides:
No person shall, without the authority of the copyright owner or the law …
(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 in opinion)
This according to the Court, creates a double knowledge standard of proof or “double scienter.” 11
The Circuit Court has no problem finding proof of the first prong of the test, “knowing that copyright management information has been removed or altered without authority of the copyright owner or the law.” It noted that Hayes was an experienced journalist with more than 1,000 articles to his credit. 12 And further,
Hayes’s testimony that he ‘understood from his training and experience that he was required to get permission to use photographs’ provided a sufficient basis for the conclusion that Hayes ‘should have reasonably known that altering the gutter credit to include a false attribution to Fisher’s law firm would have wrongfully implied that BuzzFeed had permission to use the Photograph, thus concealing its infringement.’ (citation omitted) In sum, the district court did not commit clear error—to the contrary, it carefully weighed Hayes’s testimony and demeanor in light of his extensive experience in the industry… [The District Court] found Hayes’s shifting and self-serving explanations for his use of the Photo without proper attribution not to be credible. 13
Certainly, someone with that much experience should know that trying to obtain permission from the subject of the photograph, even further, the law firm for the subject of the photograph, is not even in the same realm of getting permission from the photographer.
But the main question is the second prong, which Buzzfeed contends “the DMCA requires proof that a defendant knew, or had reasonable grounds to know, that its conduct would lead to future, third-party infringement.” 14
Put bluntly by the Court:
First, “an infringement” is not limited to the infringing acts of third parties. The plain meaning of the statutory language also encompasses an infringement committed by the defendant himself. This includes the knowing, unauthorized infringement that serves as the basis for establishing the first scienter element of Section 1202(b). In other words, a defendant’s awareness that distributing copyrighted material without proper attribution of CMI will conceal his own infringing conduct satisfies the DMCA’s second scienter requirement. (emphasis added)
Second, “an infringement” is not limited to future infringing conduct. Although the word “will” indicates future action, in the context of Section 1202(b), it is used in conjunction with the words “induce, enable, facilitate, or conceal,” not “an infringement.” So the statutory language requires constructive knowledge of future concealment, not future infringement.
We thus reject the argument that a defendant must know or have reason to know about likely future infringement by third parties. Instead, Section 1202(b)(3) also encompasses “an infringement” that, upon distribution, “will … conceal” the fact of that infringement. 15
So there you have it. Removing Copyright Management Information is a violation of the DMCA if it conceals your infringing conduct or is likely to conceal future infringing conduct, whether committed by yourself or others. This will make it much easier for photographers, and others, to make use of this section of the Copyright Act.