How to Use Watermarks and Metadata to Combat Online Infringement

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Most photographers understand that a watermark can combat online infringement by obscuring an image, but many do not know that watermarking and copyright metadata can also improve an artist’s legal position in cases of online infringement.

In a previous post, I discussed an underutilized provision of the Digital Millennium Copyright Act (“DMCA”) that was designed to help artists with a tight budget combat online infringement. Similarly, the DMCA provisions on Copyright Management Information or CMI have been largely underutilized since the DMCA was enacted but can serve as an effective tool for photographers and musicians to combat online infringement.

What Is Copyright Management Information?

The federal copyright law defines CMI as any of the following types of information that is conveyed in connection with copies of a copyrighted or copyrightable work: title, name of creator, name of copyright owner (if different from the creator), terms and conditions for use of the work, and other identifying information about the work or its owner. When a photograph is watermarked with the name of the photographer or the name of the studio or company that employes the photographer, that information is CMI. When a digital photo, music file, or e-book contains metadata that identifies the photographer, the musician that wrote and performed the song or the record company that owns the rights to the song, or the author, that information is CMI.

Why Is Copyright Management Information Important?

Most artists understand that copyright infringement (the unauthorized copying or distribution of photos, music, videos, or written works) is a violation of federal law. Less known is the fact that the DMCA created a separate and distinct claim for falsifying, altering, or removing CMI. That means that, if an infringer removes a watermark or removes or alters metadata containing CMI, in addition to a copyright infringement claim, an artist may have a claim under Section 1202 for violating the integrity of CMI. In fact, the mere act of cropping a watermark out of a digital photo or removing metadata containing CMI from an mp3, jpg, or epub file is a violation of federal law. If a copyright owner filed a lawsuit based on such conduct, in addition to whatever he or she is entitled to recover for the infringement, the copyright owner would also be entitled to recover statutory damages (damages that do not need to be proven by showing actual harm) of $2,500 to $25,000, plus his or her costs in bringing the suit and potentially recovery of his or her legal fees.

Why Should I Care? I Can’t Afford to Sue Anyone.

Even artists who never intend to file a costly lawsuit should be interested in the importance of CMI. This is because the CMI provisions of the DMCA were specifically crafted to address the unique nature of online infringement. Before digital content prevailed, copyright law was generally concerned with preventing someone from making bootleg copies of CDs or cassettes, or reproductions of photos published in magazines. The cost of reproduction was high, which meant that infringement was big business–someone made hundreds or thousands of infringing copies and sold them to the public. Infringement therefore was much more consolidated, which made it easier to combat.

On the web, with digital files, one random person could copy someone’s music or photo, upload it to iTunes or Flickr under an anonymous name with metadata stripped, and tell the world that it it is their own creation or that the artist is not claiming any copyright in the work at all. This has really happened, and more than once. Eventually, the work ends up on Google images or elsewhere, without proper copyright notices, where countless infringing reproductions may be made by unwitting users, users who might even have high regard for copyright laws but who mistakenly believe that the work’s creator has allowed free use of the work, because of altered CMI.

As internet users and web designers become increasingly aware of copyright issues, users increasingly check for CMI (or a creative commons license, authorizing certain uses) before making any unauthorized copies of online works. Indeed, Google Images allows a user to filter a search based on the copyright status of a work, and Flickr typically contains this information as well. In this way, CMI can be an effective tool in preventing accidental re-dissemination of a work by unsophisticated users by notifying users of the scope of protection in the work.

In addition, in cases of more malicious and intentional infringement, CMI gives copyright owners that have to send a cease and desist letter an additional potential claim to assert in order to make the letter more persuasive and hopefully more effective. One of the biggest reasons that copyright infringement cease and desist letters can be particularly effective is that infringement of a registered work can subject an infringer to significant statutory damages and the prospect of paying the copyright owner’s legal fees if a lawsuit must be filed. These potential remedies can be very persuasive in deterring further infringements.

However, statutory damages and recovery of legal fees for copyright infringement are only available to the creator of a work if the copyright has been registered with the U.S. Copyright Office. In contrast, the CMI provisions of the copyright law do not actually require a formal registration. I always highly recommend that every artist register their works, and would never suggest that it is sensible to rely on a CMI claim in lieu of a registration; however, if artists finds happen to find themselves in a situation where CMI has been altered an removed and a work has been infringed, they may still be able to threaten statutory damages and recovery of legal fees on the CMI claim in a cease and desist letter. As with these remedies on an infringement claim, this can be persuasive in a letter, and would hopefully help the artist achieve the true goal of getting the unauthorized copies removed from the web to prevent further unauthorized dissemination or further dissemination without proper attribution.

In these ways, CMI can be a valuable offensive and a valuable defensive tool in preventing and combating online infringement. Given these benefits, as well as the simplicity and negligible cost of adding a watermark or CMI metadata to a digital file, all photographers, authors, graphic designers, and musicians that post their creative works online should take the time to ensure that accurate metadata is attached to digital files before posting any content to the web.

 

As in all areas of the law, if you find an instance of potential copyright infringement, you should discuss the issues with an attorney specializing in that area of law.

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