Removing Photographer Id and Re-Posting Pictures Violates DMCA

The U.S. District Court dismissed a copyright infringement claim because photographer Gattoni had not registered his photos, but permitted Gattoni’s claim under 17 U.S.C. Section 1202(b), the Digital Millennium Copyright Act (“DMCA”) based upon Defendant’s removal and/or alteration of copyright management information identifying Gattoni. Gattoni v. Tibi, LLC, Case No. 16-civ-7527 (E.D. N.Y., May 25, 2017) (Available Here).

Gattoni filed her complaint against Defendant Tibi alleging copyright infringement under 17 U.S.C. Section 501 of the Copyright Act and removal or alteration of Gattoni’s identifying data under Section 1202(b) of the DMCA. Gattoni is a professional photojournalist. She posted the subject photograph on her Instagram page and marked it “(c) Matilde Gattoni Photography, 2016, All rights reserved. ”

Tibi, a clothing company, copied the photo, cropped it so that only a colorful facade of the building remained, and posted the image to Tibi ‘s Instagram page. The post was accompanied by the caption “Palette” (indicating a Tibi design code), an image of a camera, a colon, and a hyperlinked reference to Gattoni’s Instagram page.

“To state a claim for copyright infringement under the Copyright Act, 17 U.S.C. §§101 et seq., a plaintiff must allege ‘(1) which original works are the subject of the copyright claim; (2) that the plaintiff owns the copyrights in those works; (3) that the copyrights have been registered in accordance with the statute; and (4) by what acts during what time the defendant infringed the copyright.’ Palatkevich v. Choupak, Nos. 12-cv- 1681(CM), 12-cv- 1682 (CM) , 2014 WL 1509236,
at *6 (S.D.N.Y. Jan. 24, 2014). Gattoni has not, however, met the third prong of the test, registration of the copyright to the photo.”

Unfortunately for Gattoni, she had only applied for the copyright registration and had not yet received the registration. “Although the Second Circuit has not addressed this specific question, ‘[d]istrict courts in the Second Circuit require that a plaintiff ‘either hold a valid copyright registration or have applied [for] and been refused a registration as a prerequisite to filing a civil claim.’ Lumetrics, Inc. v. Blalock, 23 F. Supp. 3d 138 , 143 (W . D. N. Y. 2014) (citing Muench Photography, Inc . v . Houghton Mifflin Harcourt Publ’g, Co ., No . 09 CV 2669(LAP), 2012 WL 1021535, at *2 (S . D. N.Y . Mar. 26, 2012)).” The Court then dismissed Gattoni’s copyright infringement count.

However, Gattoni’s DMCA count survived Tibi’s motion to dismiss.

“‘The DMCA prohibits, among other things, ‘intentionally remov[ing] or alter[ing] any copyright management information.’ Zalewski v . Cicero Builder Dev., Inc., 754 F . 3d 95 , 107 (2d Cir. 2014) (quoting 17 U.S.C. § 1202(b)). Copyright management information (‘CMI’) also includes ‘(t]he title and other information identifying the work,’ and ‘(t]he name of , and other identifying information about, the author of a work.’ 17 U. S . C. § 1202(c); see Playboy Enterprises , 2016 WL 1023321, at *5. To establish a violation under subsection 1202(b), a plaintiff must show ‘(l) the existence of CMI on the [infringed work]; (2) removal and/or alteration of that information; and (3) that the removal and/or alteration was done intentionally.’ BanxCorp v. Costco Wholesale Corp., 723 F. Supp. 2d 596, 609 (S.D.N.Y. 2010) (collecting cases).”

Although Gattoni’s factual allegations in the complaint were sparse, the Court found enough to support a claim that the photo had CMI and that Defendant intentional removed or altered the CMI, a potential violation of DMCA section 1202(b).

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