BuzzFeed Must Pay For Copyright Infringement and DMCA Violations
September 3, 2020
Gregory Mango, a photographer, sued BuzzFeed for copyright infringement and violations of the Digital Millennium Copyright Act (“DMCA”) in the U.S. District Court for the Southern District of New York. Mango alleged that, without authorization, BuzzFeed published a story that included a photograph taken by him and removed attribution of the photograph to Mango. Before trial, BuzzFeed stipulated to copyright infringement for use of the photograph but challenged the DMCA allegation related to the removal of copyright management information. After a one-day bench trial, the judge sided with Mango on the DMCA claim and awarded him damages on the copyright infringement claim, the violation of the DMCA claim, and reasonable attorneys’ fees and costs. Mango v BuzzFeed, Inc., 356 F. Supp.3d 368 (S.D.N.Y. 2019). On appeal of the DMCA ruling only, the judgment of the district court was affirmed by the U.S. Court of Appeals for the Second Circuit. Mango v. BuzzFeed, Inc., No. 19-446, slip op. (2d Cir. 2020).
Mango regularly licenses his photos to newspapers and other media sources. This lawsuit involves a photograph of a lead figure in a discrimination lawsuit against the City of New York that was ultimately licensed by Mango to the New York Post. In the New York Post article, Mango was given “gutter” credit for the photo, which means that Mango’s name was included below the photo. Months after this article was published, a BuzzFeed author published an article about the discrimination case and included the photo, but the “gutter” credit to Mango had been removed. The BuzzFeed author never asked Mango for permission to use the photo, and inexplicably, listed the name of a law firm below the photo. These actions formed the basis for Mango’s copyright infringement and DMCA claims.
Without a valid defense against the copyright infringement claims, BuzzFeed stipulated to copyright infringement and was hit with statutory damages by the court. However, BuzzFeed argued that it was not liable for removing or altering the copyright management information (“CMI”) because the DMCA requires not only “knowing that [CMI] has been removed or altered” without authorization, but also knowing that distribution of the copyrighted work “will induce enable, facilitate, or conceal” a copyright infringement. 17 U.S.C. § 1202(b). And without any evidence that BuzzFeed knew its conduct would lead to future, third-party copyright infringement, Mango failed to prove this claim for violation of the DMCA. The district court sided with Mango on this issue and awarded damages for the DMCA claim in addition to the statutory damages for copyright infringement and attorneys’ fees and costs.
This “double-scienter requirement” of the DMCA was the primary issue on appeal. The Second Circuit ruled that the “infringement” under this second requirement is not limited by actor or by time and that nothing in the statute limits its applicability to downstream copyright infringement. The “double-scienter requirement” accounts for future concealment, not just future infringement. Under this interpretation, the evidence supported BuzzFeed’s (1) knowledge of the unauthorized removal of Mango’s “gutter” credit, and (2) knowledge that this removal would conceal an infringement. Thus, Buzzfeed concealed its infringement by removing the “gutter” credit, and therefore, is liable under the DMCA.
There are a few lessons that can be learned. First, do not infringe the copyrights of others. Second, never remove or alter the copyright management information from the copyrighted work.
The Opinion from the U.S. Court of Appeals for the Second Circuit can be found here – http://business.cch.com/ipld/MangoBuzzfeed2dCir20200813.pdf.
Dustin Mauck focuses his practice on intellectual property and technology disputes, counseling, and licensing.
RegitzMauck PLLC is an intellectual property boutique based in Dallas, Texas. The firm focuses on providing value-based legal services to cost-conscious clients seeking high quality legal representation in intellectual property and technology matters and disputes.