Remove Watermarks Online? Be Prepared to Answer to the DMCA

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From Art Law Journal:

Google recently made headlines in the photography community when it released a paper authored by several of its engineers that essentially concluded that a watermark on any photograph is vulnerable to being removed en masse because of the way that most stock photo agencies present images on their websites.

Although framed as “Making Visible Watermarks More Effective,” the research paper and the blog post that articulates its findings in plain English, effectively serve as a how-to manual for anyone interested in building a tool to systematically remove watermarks online. The paper specifically explains that websites such as stock photo libraries, which tend to place watermarks in the same place across each image in their catalogs, are particularly susceptible because artificial intelligence can easily predict where the watermark appears and undertake steps to remove it.

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Fascinating stuff, to be sure. But I thought of a different solution: The law.

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Most people have heard of the Digital Millennium Copyright Act (DMCA) for at least one of two major provisions: (1) the so-called “safe harbor” provisions that immunize certain online service providers from liability in exchange for agreeing, among other things, to take down content upon receiving a complaint from the copyright owner; and (2) the “anti-circumvention” provisions that make it illegal to hack through the digital rights management software used to restrict access to copyrighted content, such as the Advanced Access Content System (AACS) that protects content on Blu-ray discs.

But there is a lesser-known aspect of the DMCA known clunkily as the provision on “integrity of copyright management information.” Known more conveniently by its abbreviated name CMI, Section 1202 makes it illegal to falsify or remove copyright management information (CMI). It also makes it illegal to distribute knowing that the CMI has been removed or altered.

What is CMI Anyway?

Section 1202 of the DMCA lists eight broad categories, including:

1. The title and other information identifying the work, including the information set forth on a notice of copyright.
2. The name of, and other identifying information about, the author of a work.
3. The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.
4. With the exception of public performances of works by radio and television broadcast stations, the name of, and other identifying information about, a performer whose performance is fixed in a work other than an audiovisual work.
5. With the exception of public performances of works by radio and television broadcast stations, in the case of an audiovisual work, the name of, and other identifying information about, a writer, performer, or director who is credited in the audiovisual work.
6. Terms and conditions for use of the work.
7. Identifying numbers or symbols referring to such information or links to such information.
8. Such other information as the Register of Copyrights may prescribe by regulation, except that the Register of Copyrights may not require the provision of any information concerning the user of a copyrighted work.

It’s clear, then, that a visible copyright notice, would be considered CMI under DMCA laws. Similarly, a visible title appearing across an image would constitute CMI. Embedded metadata such as IPTC or PLUS information that provides “identifying information” about the work or the author would also plainly qualify. Courts have also held that credit lines, such as watermarks, appearing on or next to photos, as well links to photographers’ websites, such as those that appear next to photos on social media services, also clearly qualify.

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It’s worth clarifying that infringements of DMCA Section 1202 are separate from any infringement of the underlying copyright. For example, if I steal an image from a stock photo library, remove the watermark, and use it in a project without first securing a license (assuming that there is no applicable exception, such as fair use), I have violated not only Section 1202 for removing the watermark but I have also engaged in run-of-the-mill copyright infringement for using the image without a license.

Link to the rest at Art Law Journal