By Pamela C. Maloney, J.D.
DMCA did not require proof that Buzzfeed knew that its unauthorized use of a copyrighted photo would lead to future, third-party infringement.
In a case of first impression, the U.S. Court of Appeals for the Second Circuit ruled that in order to succeed on claims under the Digital Millennium Copyright Act, a photographer was not required to prove that an online media company knew that its unauthorized use of a copyrighted photo would lead to future, third-party infringement. In so ruling, the Second Circuit upheld an award of statutory damages in the amount of $8,750 against the online media company, which was based on its determination that the online media company had infringed the photographer’s rights in the photo and had altered or removed the photographer’s copyright management information in violation of the DMCA (Mango v. BuzzFeed, Inc., August 13, 2020, Park, M.).
BuzzFeed, Inc., an online media company, published a news article containing a photograph of Raymond Parker, the lead figure in a discrimination suit brought by federal prosecutors against New York City. The photo, which had been taken by Gregory Mango, a freelance photographer, initially appeared in the New York Post along with the Mango’s name in an attribution known as a "gutter credit." Several months later, BuzzFeed published the photo on its website when a veteran reporter named Gregory Hayes covered a development in Parker’s case. Although Hayes had testified that he had been trained to obtain permission to use photographs and to provide proper attribution for them, he included an unlicensed copy of Mango’s photo with his article. Although the photo did not provide credit to Mango, it did carry a gutter credit naming Parker’s law firm, Fischer & Taubenfeld. Alleging that BuzzFeed used a false credit line with the photo, Mango sued BuzzFeed for copyright infringement and removal or alteration of copyright management information (CMI) under the DMCA. Prior to trial, BuzzFeed stipulated to liability on the copyright infringement count and, after a one-day bench trial, the district court found BuzzFeed liable on the DMCA count. The court awarded statutory damages in the amount of $3,750 for copyright infringement and $5,000 for violation of the DMCA. BuzzFeed appealed, arguing that it believed it had permission to use the photo and that it did not know its conduct would lead to future, third-party copyright infringement.
Digital Millennium Copyright Act. The question on appeal was whether the DMCA required proof that a defendant knew, or had reasonable grounds to know, that its conduct would lead to future, third-party infringement. According to the Second Circuit, the DMCA required proof that: (1) a defendant distributing copyrighted material had actual knowledge that CMI had been removed or altered without authority of the copyright owner or law; and (2) a defendant knew or had reason to know that distribution of copyrighted material despite the removal of CMI would induce, enable, facilitate, or conceal and infringement. On its face, "an infringement," as used in the DMCA, was not limited by actor or by time, and thus, neither of these scienter provisions required proof that a defendant knew or had reasonable grounds to know, that its conduct would lead to future, third-party infringement, the Second Circuit ruled.
Applying the plain language of the DMCA to this case, the Second Circuit found that the district court correctly determined that BuzzFeed had violated the Act. Specifically, the district court found that Buzzfeed, through Hayes, had distributed the photo knowing that Mango’s gutter credit had been removed or altered without Mango’s permission. In doing so, the district court rejected as not credible Hayes’s claims that he believed he had obtained permission. In addition, Hayes’s testimony that he understood he was required to get permission to use photographs was sufficient to support a finding that by altering the gutter credit to include a false attribution to Fisher’s law firm, BuzzFeed had distributed the photo knowing that doing so would conceal the fact that Hayes did not have authority to use the photo.
Attorney fees. Mango’s request for attorney fees incurred in defending the appeal, which he characterized as "baseless," was denied. According to the Second Circuit, the question presented was one of first impression for the court and involved a relatively novel issue.
This case is No. 19-446-cv.
Attorneys: James H. Freeman (Liebowitz Law Firm, PLLC) for Gregory Mango. Michelle Mancino-Marsh (Arent Fox LLP) for BuzzFeed, Inc.
Companies: BuzzFeed, Inc.
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