Instagram DMCA case over removal of copyright notice moves forward

Linking to the source will not keep you out of copyright trouble.

Defendant clothing company copied and cropped one of plaintiff photographer’s images, making plaintiff’s watermarked copyright notice no longer visible. Defendant posted the cropped version to Instagram and included a link to plaintiff’s Instagram post that contained the original image.

Plaintiff sued for copyright infringement and for unauthorized removal and/or alteration of copyright management information (“CMI”) under 17 U.S.C. 1202(b) (a portion of the Digital Millennium Copyright Act).

Defendant moved to dismiss the action. The court granted the motion as to copyright infringement, but denied the motion as to removal of CMI.

The court dismissed the copyright infringement claim because plaintiff only alleged that she had applied for registration of the copyright in the image but had not yet received the registration certificate. (We covered this issue in a previous post.)

But the court held that registration was not a requirement for the CMI claim under the DMCA. And the court also rejected defendant’s argument that the inclusion of a link to plaintiff’s work undermined any assertion on plaintiff’s part that defendant’s conduct was intentional. (The relevant section of the DMCA concerning CMI includes a requirement that the removal be done “intentionally”).

Gattoni v. Tibi, LLC, 2017 WL 2313882 (S.D.N.Y. May 25, 2017)

Image courtesy of Flickr user Igor Putina under this Creative Commons license. Image cropped.

Evan_BrownAbout the Author: Evan Brown is a Chicago technology and intellectual property attorney. Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases.¬†Read Evan’s other blog, UDRP Tracker, for information about domain name disputes.