Knowingly Removing Photographer’s Credit Costs Buzzfeed Under DMCA

Freelance photographer Gregory Mango regularly licenses his photographs to newspapers.  One of those photographs concerned Raymond Parker, a main figure in a discrimination lawsuit filed against the City of New York.  The photograph was licensed to the New York Post, which published it in an article in January 2017.  Mango was given a “gutter credit”: attribution below the photograph.

A few months later, BuzzFeed published an article on the discrimination lawsuit, using the same photograph.  But BuzzFeed did not ask for permission to use the photograph, Mango had not licensed it to BuzzFeed, and—most costly for BuzzFeed—Mango was not given any credit.  Instead, gutter credit was given to Raymond Parker’s law firm, Fisher & Taubenfeld. 

Mango sued BuzzFeed, alleging copyright infringement under the Copyright Act and removal or alteration of copyright management information (“CMI”) under the Digital Millennium Copyright Act (“DMCA”).  BuzzFeed stipulated to liability for copyright infringement.  The district court found BuzzFeed liable on the DMCA claim and awarded Mango statutory damages on both claims.  BuzzFeed appealed.

On appeal, BuzzFeed argued that it could not be liable under the DMCA because it did not know or have reason to know that its conduct would lead to future third-party infringement.  This argument was based in the statutory language of the DMCA, which requires “double scienter”: first, the defendant must have actual knowledge that CMI “has been removed or altered without authority of the copyright owner or the law”; second, the defendant must know or have reason to know that distributing the copyrighted material without CMI “will induce, enable, facilitate, or conceal an infringement.” 17 U.S.C. § 1202.  Even if it had actual knowledge that the CMI had been removed without authority, BuzzFeed argued, it did not have, nor did it have any reason to have, knowledge that a third party would ultimately commit copyright infringement because of that removal.

The Second Circuit disagreed, holding that the statutory language did not require knowledge of third-party infringement to satisfy the second scienter element.  After all, the DMCA requires only knowledge that the conduct will conceal “an infringement”—not necessarily a third-party infringement.  Instead, the Court held, it is enough that a defendant is aware that distributing copyrighted material without proper CMI will conceal his own infringement.  In other words, the second scienter element encompasses an infringement that will, upon distribution, conceal that particular act of infringement. 

By distributing Mango’s photograph knowing that the gutter credit had been removed and replaced with erroneous CMI, BuzzFeed satisfied the first scienter element, the Second Circuit held.  And, the Court held, by distributing the photograph with false attribution, BuzzFeed wrongfully implied it had permission to publish it, therefore concealing its own infringement—and satisfying the second scienter element.  The Second Circuit thus affirmed the district court’s award of statutory damages for both copyright infringement under the Copyright Act and removal or alteration of CMI under the DMCA.

The decision is Mango v. Buzzfeed, Inc., No. 19-446-cv (2d Cir. Aug. 13, 2020).