By Scott Hervey
In today’s age of rapid fire social media, posting to feed the ever growing hunger of a digitally connected audience has become second nature to celebrities and other influencers. In fact, the larger the number of followers, the greater the compulsion to constantly connect. And that’s where the problems can arise.
The facts underlying the claim seemed innocuous enough. Hip hop celebrity Sean “Diddy” Combs was delivering an inspirational speech to young students at a new charter school he founded in Harlem. Professional photographer Matthew McDermott took a picture of Combs surrounded by students; the picture eventually accompanied an online article in the New York Post. McDermott’s name was featured in the credits identifying him as the photographer. A few weeks later, Combs posts the picture on his Instagram account with comments about the charter school. The result, a copyright infringement lawsuit for Combs.
Taking issue with Combs’ posting of the photo (and not including his credit), McDermott filed a lawsuit. In the lawsuit, McDermott claimed that Combs did not license the photograph from him, that Combs removed his photography credit and that the page with the photograph received over 40,000 likes. McDermott alleged that by publishing the photograph on his Instagram page, Combs infringed his copyright, Technically, McDermott’s claim is accurate. Under Section 106 of the Copyright Act, the owner of a copyright has the exclusive rights to (a) reproduce the copyrighted work in copies, and (b) in the case of a picture, display the copyrighted work publicly. Combs allegedly violated both of these rights by copying the picture from the New York Post and then posting it on his Instagram page.
McDermott’s second claim was one not regularly seen: a claim that Combs had violated Section 1202 of the Copyright, enacted pursuant to the Digital Millennium Copyright Act. Section 1202 provides that no one shall, without the permission of the copyright owner (1) intentionally remove or alter any copyright management information; or (2) distribute, or publicly perform works knowing that copyright management information has been removed without the permission of the copyright owner knowing or having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement. The term “copyright management information” is defined in the section as any of the following information conveyed in connection with copies of a work: (1) the name of, and other identifying information about, the author of a work; and (2) the name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.
McDermott claimed that by removing the credit that was included with the photograph as it was displayed in the New York Post, Combs violated both of the above provisions of the DMCA.
Since McDermott had registered his copyright in the photograph, if found liable for infringement, Combs could face liability for statutory damages up to $150,000 and attorney fees; add to that another potential $25,000 in liability for the DMCA violation. According to a filing with the court, Combs and McDermott have settled the dispute. As such, we will never know whether Combs could have defeated the infringement claim with a fair use argument. Additionally, we will never know whether the court would have accepted McDermott’s claim that his photo credit qualified as “copyright management information.” (Certain courts read Section 1202 as applicable only to technological copyright protection methods and digital methods of conveying copyright management information.) One thing is for certain: this most likely ended up being one expensive Instagram post for Combs.
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