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Introduction

SHORT SUMMARY: 

CASE EXAMPLE:

Here is a case from the Southern District of New York involving Getty images, a defendant in the case, who won the case on motion for summary judgment.  They then sought their attorney fees.  As we have discussed in other blogs, a prevailing defendant can recover in these types of case in some circumstances.  Zuma Press was one of the photography companies that brought the case alleging copyright infringement and a violation of section 1202 of the DMCA (altering copyright management information) by failing to provide proper attribution.

What is a motion for summary judgment?

A motion for summary judgment is one way that a lawsuit can end. In this case, the motion for summary judgment appears to be up for consideration.  It basically tells the judge there is no triable issue of fact for a jury to consider and thus, the court should enter judgment in favor of the Defendant as a matter of law.  In this case, Getty was the Defendant and was the party bringing the motion.  For purposes of this blog, we will only discuss the section 1202 claim.

Copyright management information Section 1202 claims

17 U.S.C. 1202 states:

(a)False Copyright Management Information.—No person shall knowingly and with the intent to induce, enable, facilitate, or conceal infringement—

(1) provide copyright management information that is false,

or

(2) distribute or import for distribution copyright management information that is false.

(b)Removal or Alteration of Copyright Management Information.—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.

(c)Definition.—As used in this section, the term “copyright management information” means any of the following information conveyed in connection with copies or phonorecords of a work or performances or displays of a work, including in digital form, except that such term does not include any personally identifying information about a user of a work or of a copy, phonorecord, performance, or display of a work:

(1) The title and other information identifying the work, including the information set forth on a notice of copyright.

(2) The name of, and other identifying information about, the author of a work.

(3) The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.

(4) With the exception of public performances of works by radio and television broadcast stations, the name of, and other identifying information about, a performer whose performance is fixed in a work other than an audiovisual work.

(5) With the exception of public performances of works by radio and television broadcast stations, in the case of an audiovisual work, the name of, and other identifying information about, a writer, performer, or director who is credited in the audiovisual work.

(6) Terms and conditions for use of the work.

(7) Identifying numbers or symbols referring to such information or links to such information.

(8) Such other information as the Register of Copyrights may prescribe by regulation, except that the Register of Copyrights may not require the provision of any information concerning the user of a copyrighted work.

Attorney Steve® discusses remedies sought under section 1202 in Mashable case

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The Section 1202 Claim

In Getty's motion they argued there was no 1202 violation:

A. There Was No Knowing Falsification, Alteration, or Removal of CMI

“Plaintiffs may argue that the addition of “Photo by Les Walker” to the caption of the Photographs constituted falsification of CMI in violation of section 1202(a) because Les Walker was not the photographer. (“Corbis via Getty Images” is not even arguably false, as the Photographs did, in fact, come from Corbis to Getty Images.) However, the Court need not resolve whether any claimed confusion as to the identity of the photographer constitutes falsification within the meaning of section 1202(a) because, as explained above, it is indisputable that crediting Les Walker rather than NewSport was not done “knowingly” by Getty Images, see supra pp. 25-26, and thus is not actionable.”

“The same conclusion pertains if the full credit added by Getty Images—“Photo by Les Walker/Corbis via Getty Images”—is considered an “alteration” of CMI under section 1202(b) despite comporting with industry standard practice; it was not done knowingly and thus is not actionable. As discussed above, the “double byline”—which Getty Images itself immediately pointed out to Zuma, see Bloom Decl. Ex. PP (“This is clearly a technical issue as they (sic) are two bylines on the images.”)—resulted from the anomaly whereby some of the NewSport images (those associated with Zuma photographers) contained credit information in the free-text caption field rather than in the proper metadata fields. See supra pp. 26-27. As Kortegard explained, the double byline “certainly was not generated knowingly by Getty Images.” Kortegard Decl. ¶ 24.

“He was not even aware of the issue until after this case was filed, and he was “very surprised to see it.” Id. Getty Images did not intentionally add a second photographer's name (“Les Walker”), as Plaintiffs may argue. The insertion of “Les Walker” in the credit occurred because, as explained above, Walker erroneously inserted his own name into the NewSport-Getty Images Contributor Agreement, such that his name, rather than “NewSport,” was automatically inserted into the “attribution” column” in the Getty Images contract chart and then into the photo credit line for the Photographs.” Eisenberg Decl. ¶ 13; supra pp. 25-26. (A similar process resulted in “Les Walker” being the attribution for the Photographs in the Getty Images watermark. See Rekem Decl. ¶¶ 4-5.)

“The caption was assembled automatically according to rules devised with Corbis that were used for the entire Corbis migration, of which the NewSport collection was a tiny part. As Kortegard explains, the intent was to “preserve the correct attribution for every photo by taking the photo description presented in the Corbis caption wholesale and appending a simple credit to the original photographer or entity and Corbis and Getty Images as distributors.”

“There was, in short, no knowing falsification of CMI in violation of section 1202(a). With respect to section 1202(b), apart from the unintentional, automated replacement of the copyright symbol with question marks in the photo caption credit on the Getty Images website, there was no removal of any CMI. And the question marks indisputably were not inserted intentionally. As explained, the appearance of “?” instead of “©” was a computer character recognition issue, Kortegard Decl. ¶¶ 26, 31-32, a common phenomenon (see supra p. 28) that also shows up in Zuma's own documents.” See, e.g., Bloom Decl. Exs. AAA, MM.

“Plaintiffs can adduce no evidence that Getty Images sought with the question marks to obscure the identity of the copyright owner. To the contrary, the appearance of question marks in the photo description in certain captions confirms that there was no deliberate targeting of the copyright symbol. See Bloom Decl. Ex. EEE, Getty Master ID#523958662 (Corbis' original caption, “Team Telenica continued their domination of the Volvo Ocean Race today .”

As a comparison of the original Corbis caption to the Getty Images caption clearly reveals, in each instance, the appearance and number of question marks correlates directly with an odd character set in the Corbis caption. This was, as stated, simply a character recognition issue: When the computer encountered combinations of characters that it could not translate, it replaced those characters with question marks. The bottom line is that that the NewSport collection was migrated in the same manner as all other Corbis collections—it was not singled out in any way—which is fatal to Plaintiffs' section 1202 claims.

“There Was No Effort to Induce, Enable, Facilitate, or Conceal Infringement Another independently sufficient ground for granting summary judgment to Getty Images on Plaintiffs' section 1202 claims is that any falsification, removal, or alteration of CMI was not done order to “induce, enable, facilitate, or conceal an infringement.”

In the first place, there was no infringement. See supra Point II. But even if the Court were to deny summary judgment to Getty Images as to infringement, the record demonstrates beyond dispute that any infringement was unintentional and thus cannot support a section 1202 claim. See, e.g., Bryant v. Europadisk, Ltd., No. 07 Civ. 3050 (WGY), (S.D.N.Y. 2009), aff'd sub. nom., Bryant v. Media Right Prods., Inc., 603 F.3d 135, 143 (2d Cir. 2010) (holding that music distributor was innocent infringer where it was party to an agreement with plaintiff's marketing agent that gave it a non-exclusive right to distribute plaintiff's sound recordings and contained an express warranty that such distribution would not infringe the rights of third parties).

To the contrary, Getty Images ingested the NewSport photos in the reasonable, goodfaith belief that it had secured all necessary rights to them from the authorized licensor. In addition, Getty Images promptly removed all photos associated with Zuma from its website after being contacted by Zuma pending further investigation (the fruits of which it shared with Zuma), thereby demonstrating its good faith. See Bryant (noting that distributor “immediately ceased its infringing conduct” when made aware of plaintiff's claim).

As a matter of law, in the absence of actual knowledge of infringement—of which there is none here—willful infringement can be established only where the defendant's action was “the result of ‘reckless disregard' for, or ‘willful blindness' to, the copyright holder's rights.” Island Software & Computer Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 263 (2d Cir. 2005); Psihoyos v. John Wiley & Sons, Inc., No. 11 Civ. 1416 (JPO), 2012 WL 5506121 (S.D.N.Y. Nov. 7, 2012), aff'd, 748 F.3d 120 (2d Cir. 2014).

In Psihoyos, by way of counter-example, such a showing consisted of evidence that the defendant

(1) made no effort to curb its infringement after becoming aware that the plaintiff's photographs had been used without a license or outside the scope of the license;

(2) lacked a license compliance program;

(3) had violated license agreements numerous times in the past;

and

(4) may have attempted to cover up its infringements.

The evidence here shows just the opposite. Specifically, Getty Images:

(1) had no knowledge of the claimed infringement and pulled the images referenced by Zuma as quickly as it could after Zuma notified it of the issue;

(2) had procedures to ensure that no assets migrated from Corbis until a contract covering those assets was in place;

and

(3) was voluntarily forthcoming with information relating to Zuma's infringement claims.

“Any attempt to characterize the alleged infringement by Getty Images as intentional based on the claim that Getty Images “should have done more” in terms of due diligence on the Photographs, also would fail to establish willful infringement as a matter of law. Absent an extreme departure from a standard of care (of which Plaintiffs have adduced no evidence), that argument would sound in negligence, not reckless disregard. See Grateful Dead Prods., Inc. v. Auditory Odyssey, 76 F.3d 386, at *1 (9th Cir. 1996) (unpub.) (holding that district court's finding that defendants “knew or should have known” that title in copyrighted works was unclear was consistent with conclusion that defendants were “negligent, but not willful”; it was not a finding that defendants “knew they were infringing on plaintiffs' copyrights” or that defendants acted “with deliberate indifference” to plaintiffs' rights); Waran v. Christies, Inc., No 16-cv-1386, 2018 WL 2452758, at *5 (S.D.N.Y. May 31, 2018) (“While Waran may have an argument that Christie's should have done more, that amounts to negligence, not recklessness . . . . There is no indication that the consignors' provenance information raised any red flags that Christie's should have but failed to notice.”).

“There is no factual basis to base a finding of negligence, let alone recklessness, on Plaintiffs' repeated suggestion that the appearance of “Zuma” in the Corbis caption was a “red flag” that should have alerted Getty Images to Zuma's ownership claim. As Getty Images' Chris Eisenberg explains, “Zuma” appeared only in the caption in the Corbis metadata, not in the source field, and thus did not indicate that Zuma owned the images. Eisenberg Decl. ¶ 12; Bloom Decl. Ex. NN (“Other than the free-text caption, none of the usual credit fields reference Zuma Press.”). To the contrary, the Corbis contract ID with which the Zuma images were associated indicated that the images belonged to NewSport, not to Zuma. See Eisenberg Decl. ¶ 12. As shown by the unobjected-to credit lines of certain of the Photographs as they appeared on the Corbis website, moreover, see Bloom Decl. Ex. ZZ,9 there is nothing unusual about the appearance of multiple photo agencies in credit lines. Zuma's own sublicensing of other agencies' images is similarly reflected in credits with references to multiple agencies. See Bloom Decl. Ex. BBB. In short, the claim that the appearance of “Zuma” in the credit line should have triggered scrutiny of NewSport's authority to license the Photographs has no merit.

Even if there were a genuine issue of material fact as to whether Getty Images infringed the Photographs intentionally—and there is not—there is, as factual matter, no causal link between the claimed CMI alteration/removal and the claimed infringement; to the contrary, by retaining the photographer name and Zuma's name in the captions, Getty Images effectively disclosed the provenance of the Photographs; there was no concealment of the claimed infringement. Nor did the second parenthetical in the caption credit induce, enable, or facilitate unlawful copying by Getty Images (or anyone else). Plaintiffs therefore cannot show that nfringement (even if intentional) was “likely . . . to occur as a result of the removal or alteration of CMI,” Stevens, and thus cannot establish a violation of section 1202(b). For all these reasons, the section 1202 claims fail as a matter of law.

Higbee & Associates Photo Infringement – 1202 claims

One photo infringement Plaintiff we routinely advise clients on when dealing with a demand letter from Higbee & Associates is RM Media Ltd.  As we have told our clients, RM Media and Grecco Productions are two of their clients that DO file lawsuits, so you have to take them seriously.  On the HIGBEE website you can see some of the damage awards they have achieved so there is often a legitimate reason to respond, and seek to settlement photo infringement cases.  In the case of RM Media LTD v. XXX a default judgment was entered, in part on a 1202 alteration claim.  The Court noted:

Contact a California Photo infringement law firm

We can help California based artists, photographers, illustrators, font designers and other creative professionals protect their copyrights and pursue federal copyright infringement actions (including small claims board claims, defenses, and federal court opt-outs. We may be able to pursue a Plaintiff case on a contingency fee basis (meaning, if we do not recover, you do not pay us).  We can help defendants with defenses such as public domain, license, fair use, and others.

Call us a for a free initial consultation at (877) 276-5084.  Or email us through our contact form.