Zuma Press, Inc. et al. v. Getty Images (US), Inc., No. 19-3029, 2021 WL 807865 (2d Cir. Mar. 3, 2021)
In a decision that is favorable to the image licensing industry, the Second Circuit earlier this month upheld a ruling by the Southern District of New York granting summary judgment in favor of Getty Images in its defense against claims of copyright infringement and alteration of copyright management information (“CMI”) brought by Zuma Press, Inc. and several other plantiffs (“Zuma”) and others , based on the ingestion of images that altered the images’ metadata fields.
The case stemmed from allegations that Getty Images had unauthorizedly posted to its website more than 47,000 images associated with Zuma. However, because the Second Circuit believed that Getty Images had a valid license to use the images, based on the various agreements at issue, it held that the plaintiffs’ copyright infringement claim could not proceed.
Significantly, the Second Circuit also affirmed the summary judgment dismissal of Zuma’s claim that Getty Images had knowingly and unauthorizedly altered their images’ CMI—that is, information conveyed with a copyrighted work that identifies its owner and the nature of the copyright (including metadata and ownership fields). CMI claims fall under Section 1202(b)(3) of the Digital Millennium Copyright Act (“DMCA”) and require that a defendant knew or had reason to know that distributing the images would facilitate infringement. In the court’s view, the district court correctly decided that a reasonable juror could conclude only that Getty Images did not know about the plaintiffs’ rights in the images until after Getty Images had posted them to its website. Getty Images promptly removed the images and launched a full internal investigation immediately after becoming aware of Zuma’s claims. The court also noted that the CMI changes could reasonably have resulted from aberrations or mistakes during Getty Images’ automatic migration process—which involved approximately seven million images—rather than an intentional act on its part.
In general, Section 1202 claims are difficult to prove as the law requires both an intent to remove or alter the CMI and an intent to facilitate an infringement. While litigants have increasingly included Section 1202 claims in their copyright infringement cases of late (as Section 1202 does not require registration and yields statutory damages ranging from $2,500 to $25,000) this “double” intent requirement makes them very difficult claims to prove. As to the interplay between Section 1202 and image libraries, because of the volume of images ingested by many image libraries, the process of ingestion is often automated. As such, the metadata fields for copyright ownership may not always retain the same information as initially included. The result of Zuma is good news for the industry, which must rely on technology to upload and incorporate images from many sources and make them available for licensing on a platform. Fortunately, the court recognized the necessity of such practices in its decision.
Nancy Wolff, DMLA’s senior legal adviser, is a partner at Cowan, DeBaets, Abrahams & Sheppard, LLP, a law firm focused on entertainment, digital media, intellectual property, publishing, corporate finance and litigation. CDAS also is a sustaining sponsor of DMLA.
Digital Media Licensing Association