Section 1202 of the Digital Millennium Copyright Act (“DMCA”) prohibits removing or altering copyright management information (“CMI”) that is “conveyed in connection with” works protected by copyright. Under the statute, CMI is defined to include information such as the title or other information identifying the copyrighted work, identifying information about the author, and identifying information about the copyright owner, including the information set forth in a notice of copyright. 17 U.S.C. § 1202(c).

Indeed, “the point of CMI is to inform the public that something is copyrighted and to prevent infringement.” Pers. Keepsakes, Inc. v. Personalizationmall.com, Inc., 975 F. Supp. 2d 920, 928 (N.D. Ill. 2013) (citation omitted).

CMI may be present in a wide variety of formats. See, e.g., McGucken v. Chive Media Grp., LLC, No. 18-cv-01612-RSWL, 2018 WL 3410095, at *4 (C.D. Cal. July 11, 2018) (watermarks identifying author and owner constitute CMI); Iconics, Inc. v. Massaro, 192 F. Supp. 3d 254, 272 (D. Mass. 2016) (“[C]opyright headers are paradigmatic CMI.”); Agence Fr. Presse v. Morel, 769 F. Supp. 2d 295, 306 (S.D.N.Y. 2011) (notations containing author and copyright owner's name constitutes CMI). Some courts have suggested that CMI also could include metadata of a photograph's electronic image file. Stevens v. Corelogic, Inc., 899 F.3d 666, 675 (9th Cir. 2018).

Information in CMI

But courts have declined to find CMI when the information provided differed from information in the copyright registration. See, e.g., Pers. Keepsakes, 975 F. Supp. 2d at 928 (poem titles were not CMI because they did not match the titles of the works on the copyright registrations).

Files names of images could be CMI when they include relevant identifying information. For example, in Izmo, Inc. v. Roadster, Inc., the court found that file names constituted CMI because the complaint alleged that the file names of the images at issue were “the file name[s] of [the] original Izmo Image[s] filed and/or registered with the U.S. Copyright Office.” Id., No. 18-CV-06092-NC, 2019 WL 13210561, at *3 (N.D. Cal. Mar. 26, 2019).

Courts tend to find that information constitutes CMI when the information is either directly on or abutting the work or image. See, e.g., Williams v. Cavalli, No. CV 14- 06659-AB JEMx, 2015 WL 1247065, at *2 (C.D. Cal. Feb. 12, 2015) (stating that signatures that appeared within a mural “necessarily were conveyed in connection the display of the mural” and constituted CMI); Pac. Studios Inc. v. W. Coast Backing Inc., No. 2:12-cv-00692-JHN-JCG, 2012 WL 12887637, at *2-3 (C.D. Cal. Apr. 18, 2012) (concluding that an alphanumeric designation on the border of an online image for purposes of identification was CMI).

On the other hand, a copyright notice located on the bottom of a webpage, and not around the images at issue, might be deemed “not ‘conveyed in connection with' the work in a way that makes the information CMI.” SellPoolSuppliesOnline.com LLC v. Ugly Pools Arizona, Inc., 344 F. Supp. 3d 1075, 1082 (D. Ariz. 2018), aff'd, 804 F. App'x 668 (9th Cir. 2020).

Fashion Nova v. Blush Mark

Recently, in Fashion Nova, LLC v. Blush Mark, Inc., No. CV 22-6127-RSWL-RAOx, (C.D. Cal. Mar. 15, 2023), the plaintiff alleged that the defendant removed the file names assigned to the images and proceeded to distribute the product images with Defendants' company name and/or logo so as to falsely identify themselves as the copyright owner.

The Court, however, found that there was no allegation that the file names link the images to their copyright registrations or provide notice that the images were copyrighted.

Consequently, merely pleading that the file names identify the images does not show that such file names would put a viewer on notice that the works are copyrighted.

The Court also found that “Plaintiff's company name and logo appear to be located at the top of Plaintiff's website,” and thus were not CMI because they were not conveyed in connection with the relevant images.

And product names alone are not CMI, as they do not reveal to the viewer that the images are copyrighted. See Fischer v. Forrest, 968 F.3d 216, 219 (2d Cir. 2020) (holding that removal of a product name did not constitute removal of CMI).

The Court granted the defendant's motion to dismiss for not stating a claim for violation of section 1202, but also granted leave to amend.

The attorneys at Thomas P. Howard, LLC litigate copyright cases nationwide including in Colorado.