Copyright

On August 13, 2020, the Second Circuit handed down a significant ruling which will make it much easier for artists to sue over the removal of copyright management information (CMI). The case is Mango v. Buzzfeed, Inc.[ref]2020 WL 4690071 2d Circuit Court of Appeals 2020[/ref] The majority of the facts of the case are not in dispute.

• Plaintiff freelance photographer Gregory Mango took a picture of Raymond Parker, the "lead figure" in a civil suit brought against New York City alleging discrimination by the NYPD.[ref]Id. at 1[/ref]
• Mango licensed the photo to the New York Post.[ref]Id.[/ref]
• The New York Post credited Mango as photographer just below the photograph, known in the trade as a gutter credit.[ref]Id.[/ref]
• Buzzfeed reporter Michael Hayes downloaded the photo from the New York Post website, without obtaining a license from Mango.[ref]Id.[/ref]
• Hayes removed Mango's name from the photo and substituted the name of Parker's (not Mango's) attorneys, Fisher and Taubenfeld.[ref]Id.[/ref]

The only real dispute is that Hayes contended he got permission for Raymond Parker's attorneys to use the photo. "Parker's attorney did not recall such a conversation, but said she had difficulty imagining that she gave Hayes ‘permission to use a picture that [she] had no authority to give permission for.'"[ref]Id.[/ref] "Mango filed a two-count complaint against BuzzFeed in the U.S. District Court for the Southern District of New York, alleging (1) copyright infringement under the Copyright Act, (citation omitted) and (2) removal or alteration of CMI under the DMCA."[ref]Id.[/ref] Buzzfeed conceded the copyright infringement claim, but disputed the DMCA claim. The District Court awarded $3,750 in statutory damages on the infringement claim, $5,000 on the DMCA claim, and $66,942.53 in attorneys fees and court costs.[ref]Id. at 2[/ref] Ouch. Would have been much cheaper just to get a license, eh? Buzzfeed only appeals the verdict as to the DMCA claim.[ref]Id.[/ref] At issue is section 1202(b) of the Copyright Act. It provides: No person shall, without the authority of the copyright owner or the law ... (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. (emphasis in opinion) This according to the Court, creates a double knowledge standard of proof or "double scienter."[ref]Id.[/ref] The Circuit Court has no problem finding proof of the first prong of the test, "knowing that copyright management information has been removed or altered without authority of the copyright owner or the law." It noted that Hayes was an experienced journalist with more than 1,000 articles to his credit.[ref]Id. at 1[/ref] And further, Hayes's testimony that he ‘understood from his training and experience that he was required to get permission to use photographs' provided a sufficient basis for the conclusion that Hayes ‘should have reasonably known that altering the gutter credit to include a false attribution to Fisher's law firm would have wrongfully implied that BuzzFeed had permission to use the Photograph, thus concealing its infringement.' (citation omitted) In sum, the district court did not commit clear error—to the contrary, it carefully weighed Hayes's testimony and demeanor in light of his extensive experience in the industry… [The District Court] found Hayes's shifting and self-serving explanations for his use of the Photo without proper attribution not to be credible.[ref]Id. at 4[/ref] Certainly, someone with that much experience should know that trying to obtain permission from the subject of the photograph, even further, the law firm for the subject of the photograph, is not even in the same realm of getting permission from the photographer. But the main question is the second prong, which Buzzfeed contends "the DMCA requires proof that a defendant knew, or had reasonable grounds to know, that its conduct would lead to future, third-party infringement."[ref]Id. at 3[/ref] Put bluntly by the Court: First, "an infringement" is not limited to the infringing acts of third parties. The plain meaning of the statutory language also encompasses an infringement committed by the defendant himself. This includes the knowing, unauthorized infringement that serves as the basis for establishing the first scienter element of Section 1202(b). In other words, a defendant's awareness that distributing copyrighted material without proper attribution of CMI will conceal his own infringing conduct satisfies the DMCA's second scienter requirement. (emphasis added) Second, "an infringement" is not limited to future infringing conduct. Although the word "will" indicates future action, in the context of Section 1202(b), it is used in conjunction with the words "induce, enable, facilitate, or conceal," not "an infringement."  So the statutory language requires constructive knowledge of future concealment, not future infringement. We thus reject the argument that a defendant must know or have reason to know about likely future infringement by third parties. Instead, Section 1202(b)(3) also encompasses "an infringement" that, upon distribution, "will ... conceal" the fact of that infringement.[ref]Id.[/ref] So there you have it. Removing Copyright Management Information is a violation of the DMCA if it conceals your infringing conduct or is likely to conceal future infringing conduct, whether committed by yourself or others. This will make it much easier for photographers, and others, to make use of this section of the Copyright Act.

This is a topic that does not get analyzed very often, and few Courts have taken up the subject. But the case of Jefferson v. Raisen has brought the issue to the forefront, in a battle over who are the writers of the Grammy winning hit "Truth Hurts." On one side is Melissa Jefferson, professionally known as "Lizzo." She claims to be one of the writers of the song "Truth Hurts." She has sued songwriters Justin Raisen and others for declaratory decree that they are not co-writers of "Truth Hurts." For their side, the Raisen parties claim that they wrote a song titled "Healthy" with Lizzo, and that elements of "Healthy" were copied in "Truth Hurts."[ref]Jefferson v. Raisen Case CV 19-9107-DMG (MAAx) United States District court for the Central District of California at 1. There currently is no WestLaw citation[/ref] According to Ashley Cullins at The Hollywood Reporter-Esq.: "[Lizzo] maintains the only significant thing to come out of that session was the line "I just did a DNA test turns out I'm a hundred percent that bitch" which was inspired by a viral tweet that another songwriter present (Jesse Saint John Geller, who isn't part of the litigation) brought up to the group. After news of the dispute broke, Lizzo ripped the brothers for claiming they helped her write the song, but gave the woman who wrote that tweet songwriting credit."[ref]"Truth Hurts" Suit Against Lizzo Dismissed By Judge[/ref] The Defendants, angered by this public rebuke, set up a songwriting challenge with the performance rights organization ASCAP.[ref]Jefferson v. Raisen at 2[/ref] But according to the Judge, none of the allegations of copying matter. She rules that even if Lizzo did copy elements of "Healthy" into "Truth Hurts," this does not make the Defendants co-authors of "Truth Hurts." "[A]s a matter of law, a joint author of one copyrightable work does not automatically gain ownership of a derivative work in which the joint author had no hand in creating." Citing to the 9^th Circuit case of Ashton-Tate Corp. v. Ross.[ref]916 F.2d 516 (9^th Circuit Court of Appeals (1990)[/ref] However, the facts of Ashton-Tate are a bit different than presented here. Their two computer programmers worked on a single program, but on disparate parts: one created the user interface while the other created the "computational component."[ref]Jefferson v. Raisen at 4[/ref] In the case of "Truth Hurts," numerous parties were working on a solitary work together. Thus, the Defendants point to the case of Marizio v. Goldsmith,[ref]84 F.Supp 2d 455 (SDNY)[/ref] where two writers worked together on a single manuscript. There, the Court found that meant that one author could not deny the contribution of the other, if incorporated into the final product.[ref]Jefferson v. Raisen at 5[/ref] The first problem for the Defendants is that Ashton-Tate is from the 9^th Circuit and binding precedent on the trial Court. The Goldsmith case, coming from the Southern District of New York, is not binding on the trial Court. The next problem for the Defendants is one of the facts pled in the counter-claim. They never contended that they were part of the writing process for "Truth Hurts." They contended they helped write a stand-alone song "Healthy," which was fully completed. Then, it is contended that parts of "Healthy" were incorporated into "Truth Hurts" without their involvement.[ref]Id.[/ref] This makes "Truth Hurts" a derivative work of "Healthy." And that fact, according to the Judge, does not confer ownership. "As matter of law, even if Counterclaimants are co-authors of Healthy, they have not alleged an ownership interest in Truth Hurts, which they claim is a derivative work. On that basis alone, the Truth Hurts Claims fail."[ref]Id. at 6[/ref] The Judge dismisses the case, but leaves the door open for an amended counterclaim.[ref]Id. at 7[/ref] This ruling is derived from the facet of copyright law that states that one author is incapable of infringing on the rights of a co-author.[ref]See e.g. Who Owns The Movies? Seth F. Gorman UCLA Entertainment Law Review 7 (1) 1990 at 2[/ref] But this does not mean that the Counter-claimants are completely out of luck. The trial court quotes this language from the Ashton-Tate decision: "[A]n author does not acquire an authorship interest in a derivative work that utilizes part of the joint work [but] that author may be entitled to compensation for the use of the original joint work."[ref]916 F.2d 516 (9^th Circuit Court of Appeals (1990) at 523[/ref] So, it still remains the burden of proof of the Counter-claimants that some elements of "Healthy" made it into "Truth Hurts." Though, remember the one element of "Truth Hurts" that appears in both songs  "I just did a DNA test turns out I'm 100% that bitch" was not created by any of the counter-claimants.