By Daniel H. Bliss
Suppose you have uncovered a copyrighted work from another that contains copyright management information such as a copyright notice. However, you want to remove or alter this copyright management information. Should you remove or alter any copyright management information from the copyrighted work? The answer is NO because there is liability!
What is copyright management information (“CMI”)? CMI is defined under 17 U.S.C. § 1202(c) as information, including in digital form, …: “(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 … (6) Terms and conditions for use of the work. (7) Identifying numbers or symbols referring to such information or links to such information …” conveyed in connection with copies, phonorecords, performances, or displays of a copyrighted work.
Is there an independent cause of action for removing or altering CMI such as a copyright notice from the copyrighted work? Under 17 U.S.C. § 1202(b), “[n]o 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 … having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right …”.
Does this cause of action apply to anyone without exception? Under Section 1202, there is no cause or action or liability for authorized investigative, protective, information security, or intelligence activities of certain law enforcement, intelligence, or government agencies. What are the civil remedies for violation of these provisions? Under 17 U.S.C. § 1203, a plaintiff may recover statutory damages for each violation “in the sum of not less than $2,500 or more than $25,000,” with the exact amount being determined by the court, as well as attorneys’ fees and injunctive relief. Thus, Section 1202 will only apply to a person or entity that knowingly or should have known that the CMI has been removed or altered on the copyrighted work and distributes the copyrighted work.
Let’s assume that your copyrighted work is a photograph. Suppose you have placed your name directly on the photograph, in the photo metadata, or in a watermark when it is published. Further, suppose someone posts that photograph on their website without your name on it. Is there liability? In the case of Murphy v. Millennium Radio Group LLC, 650 F.3d 295 (3d Cir. 2011), the Third Circuit Court held that defendants were liable for both unauthorized use of plaintiff’s photograph and removal of CMI from the photograph. In Murphy, a photographer who took photographs and placed a gutter credit with his name on the photographs, when published. However, a radio station copied the photographs and posted them to the web without the gutter credit. Murphy filed a lawsuit for copyright infringement and violation of the Digital Millenium Copyright Act for removing the gutter credit. The court found that “a cause of action under §1202 of the DMCA potentially lies whenever the types of information listed in § 1202(c)(1)-(8) and ‘conveyed in connection with copies…of a work…including in digital form’ is falsified or removed, regardless of the form in which that information is conveyed.”
Based upon the above, you should never remove or alter copyright management information or CMI from a copyrighted work. There is liability for removing or altering CMI from a copyrighted work. Unlike statutory damages for copyright infringement, damages for liability under Section 1202 do not require that the copyright owner register the copyrighted work before the infringement occurs. Therefore, it is recommended that you add CMI to all of your copyrighted works. It will provide an independent cause of action, and you may prevail in a copyright infringement suit for either or both copyright infringement or CMI removal. In addition, a court may award statutory damages and attorneys’ fees if it concludes that someone knowingly removed CMI and distributed the copyrighted work.