Copyright management information (“CMI”) is defined as “information conveyed in connection with copies or phonorecords of a work or performances or displays of a work, including in digital form…” including title, notice of copyright information, author and copyright holder information, terms and conditions for use of the work, and other information relating to the copyright status of the work and protected by the Digital Millennium Copyright Act (“DMCA”) (17 U.S. Code § 1202 (c)). CMI allows those looking to legitimately license your work to readily contact you, while placing potential infringers on notice of your rights. Subject to certain exclusions, CMI may not be removed, altered, or falsified if the CMI is conveyed with the copyrighted work.
In Friedman v Live Nation [9th Cir Opinion #14-55302, decided 8/18/2016], the 9th Circuit held that the district court should not have granted summary judgment to Live Nation when there was an inference that the copyright management information (CMI) of the plaintiff was removed or tampered with even though there was no evidence that Defendant Live Nation was the one that removed or tampered with the CMI.
Plaintiff Glen Friedman a well-known photographer, published a series of photographs of hip-hop group Run DMC. Friedman licensed the images to Sony Music for use as a computer wallpaper download for fans.
Defendant Live Nation produced a wall calendar and t-shirts using the images of Run DMC for distribution via Live Nation’s “Style Guide,” which included a library of photos of Run DMC. While Live Nation had permission from Run DMC to use their image and likeness, it did not realize that some of the photos properly belonged to Friedman and no permission to use his photographs on the products had been obtained. Live Nation claimed they were not aware that Friedman was the copyright holder of the photographs and further claimed that Friedman had no proof that Live Nation removed the CMI.
The Ninth Circuit stated that it is irrelevant if Defendant Live Nation removed the CMI; Live Nation is liable if Live Nation had reason to know that someone removed the CMI. A CMI claim does not just prohibit the intentional removal of CMI, but also prohibits distributing works where the party knows that CMI has been removed. Since the only difference between Friedman’s original photographs and the images used by Live Nation were the removal of CMI, it is reasonable that Live Nation’s conduct could be seen as “recklessness or willful blindness.”
Tips for Clients:
For the full opinion of the Friedman v. Live Nation case, click here.
For more information on Copyright Management Information, click here for a useful law student note on the subject published by the Washington Journal of Law, Technology, & the Arts entitled “A Survey of the DMCA’s Copyright Management Information Protections” by Susuk Lim.