A simple copyright notice (e.g., “© [Year of First Publication] [Owner]”) on a website can imply an assertion of ownership in individual elements of the website and constitute “copyright management information” under the Digital Millennium Copyright Act (DMCA), a Texas district court held. A Texas investment company learned this lesson the hard way when it removed the copyright notice from an image, used the modified image on its website without authorization, and was subsequently ordered by the court to pay enhanced damages for willful copyright infringement and statutory damages for violating the DMCA.
The original image at issue, a graphic juxtaposing two road signs, was created by a graphics company in Texas and federally registered with the U.S. Copyright Office. In 2012, the graphics company discovered an unauthorized copy of the image on the investment company’s website. The image had been stripped of the copyright notice that was part of the original image such that the investment company’s notice of copyright ownership at the bottom of the webpage was the only copyright information associated with it.
The graphics company filed a complaint alleging willful copyright infringement under the Copyright Act and a violation of Section 1202 of the DMCA, which prohibits the intentional removal or false provision of “copyright management information.” The investment company failed to respond, earning a default judgment against it in John Perez Graphics & Design, LLC v. Green Tree Investment Group, Inc., 2013 U.S. Dist. LEXIS 61928 (N.D. Tex. May 1, 2013).
The court awarded the graphics company enhanced damages for willful copyright infringement totaling $7,500, finding evidence of willfulness in the investment company’s removal of the copyright notice and use of the modified image on a webpage containing the investment company’s own copyright notice, which the court determined constituted an assertion of ownership of the image. While the amounts at stake were relatively small for copyright infringement, under different facts the exposure could have been much greater.
Further, the court held that the investment company’s removal of the original copyright notice and substitution of its own constituted the provision of false copyright management information in violation of the copyright management provision of the DMCA. 17 U.S.C. § 1202. This determination supported an additional award of $10,000 in statutory damages under the DMCA civil remedies provision, 17 U.S.C. § 1203, which allows for an award of up to $25,000 for each violation.
This double whammy might have been subject to challenge had the investment company litigated the issue, as there is disagreement in the federal courts as to whether a simple copyright notice constitutes “copyright management information” within the meaning of the DMCA. For an in-depth discussion of the issue, see Susuk Lim, A Survey of the DMCA’s Copyright Management Information Protections: The DMCA’s CMI Landscape after All Headline News and McClatchey, 6 Wash J.L. Tech. & Arts 297 (2011). As discussed in that article, some courts have limited the application of the DMCA copyright management provision to information that is part of a digital rights management technology.
The potential for simple copyright notices to constitute copyright management information raises a question for further thought: As Section 1202 of the DMCA does not explicitly make an exception for fair use, would removal or alteration of copyright management information in a context that constitutes “fair use” under Section 107 of the Copyright Act still run afoul of the DMCA and trigger statutory penalties?