Cryptic Notation Amounts To Copyright Management Information (CMI) Under The DMCA

Agence France Presse v. Morel, (Jan. 14, 2011, S.D.N.Y.)

Agence France Press, Turner Broadcasting/CNN, ABC, Getty Images and CBS are suing Daniel Morel after Morel claimed that the news sites stole his images from Twitter immediately after the Haiti earthquake.

Twitter’s terms of service granted a license to use content only to Twitter and its partners. Moreover, AFP and TBS failed to establish that they were intended third-party beneficiaries of Twitter’s terms of service. Morel’s allegations that AFP knew that the images were his, disregarded his rights, and licensed Morel’s images to third-parties were sufficient to plead knowledge and inducement of infringement. Morel never uploaded images on Twitter. Instead, he used a third-party service called TwitPic, which says in its terms and conditions that the images posted remain the property of their owners. Morel used Twitter only to post a link to his TwitPic images. However the court held that Morel failed to allege facts supporting his claim that CBS had a direct financial interest in its affiliates’ exploitation of Morel’s images.

The Digital Millennium Copyright Act (DMCA) prohibits anyone from knowingly providing or distributing false copyright information with intent to “induce, enable, facilitate or conceal infringement.” Morel claims that AFP falsified and removed his copyright information from his images.

“Morel set forth a factual basis for alleging that AFP knew the copyright management information was false and intended to facilitate infringement,” Pauley wrote. In particular, an AFP editor viewed Morel’s images before AFP took identical images from Suero’s Twitpic feed. AFP also knew Morel was a professional photographer “and had no reason to believe Suero took the photos. However, AFP credited Suero without inquiry,” District Court Judge Pauley explained.

The court rejected AFP’s argument that it didn’t remove copyright management information (CMI) in violation of the DMCA. AFP says the DMCA stipulates that CMI must be removed from the photograph itself. But the DMCA “imposes no such requirement,” Pauley said. CMI includes information conveyed in connection with the work in question, and not just information on the work itself.

“It is implausible that a viewer of Morel’s photos would not understand the designation ‘Morel’ and ‘by photomorel’ appearing next to the images to refer to authorship,” Pauley wrote. Regarding Morel’s claim for violation of the Digital Millennium Copyright Act, the notations “Morel,” “daniel morel,” and “photomorel” fell within the scope of copyright management information under the plain language of the statute.

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