On claim that media site violated Digital Millennium Copyright Act by publishing photographer’s work without permission and removing his name from photo credit, Second Circuit holds plain language of DMCA does not require evidence of infringement by third party in future and encompasses infringement committed by defendant.
Freelance photographer Gregory Mango photographed the lead figure in a discrimination lawsuit against the city of New York and then licensed the photo to the New York Post, which published the photo and properly attributed it to plaintiff. Three months later, Buzzfeed, an online news and media corporation, published an article about the same lead figure in the discrimination suit and included plaintiff’s photo. The Buzzfeed reporter did not ask plaintiff for permission to use the image. Rather than listing plaintiff’s name in the gutter credit, the reporter listed the name of the law firm representing the subject of the photo.
Plaintiff asserted two claims against Buzzfeed, alleging copyright infringement under the Copyright Act and removal or alteration of copyright management information (CMI), which refers to any information conveyed in connection with copyrighted work (e.g., a photo credit), under the Digital Millennium Copyright Act (DMCA). A party can be liable under this statute if it intentionally removes or alters CMI without the permission of the copyright owner while having reasonable grounds to know that such conduct “will induce, enable, facilitate, or conceal an infringement” of the copyrighted work. The district court determined that Buzzfeed knew CMI had been removed without permission and that it had reasonable grounds to know the removal concealed a copyright infringement, and awarded plaintiff statutory damages.
On appeal, Buzzfeed argued that the DMCA requires proof that defendant knew its conduct would lead specifically to “future, third-party infringement.” In other words, because its own infringement did not constitute a third-party infringement, Buzzfeed could not be held liable under the DMCA. The Second Circuit disagreed, finding that the plain and unambiguous language of the statute did not require that construction. The statute neither limited infringement by the type of actor (i.e., third party) or time (i.e., future), and Buzzfeed’s reasonable awareness that improperly attributing the photograph would conceal its own infringing conduct was enough to satisfy the DMCA’s scienter requirements. The Buzzfeed reporter also testified that he had worked at Buzzfeed for over six years, published more than 1,000 articles, and “understood from his training and experience that he was required to get permission to use photographs.” Therefore, the district court had sufficient basis to conclude that Buzzfeed should have reasonably known that altering the photo credit would imply that it had permission to use the photo, thereby concealing the infringement.
Summary prepared by David Grossman and Marwa Abdelaziz