We recently talked in this space about a case in which the court found that a photograph copied onto a website was not only substantially similar to the copyrighted original, as required for copyright infringement, but it was identical, an exact digital copy. Today we share further observations from a new federal copyright case involving photographs out of California. 

At Hovey Williams LLP, we work hard with our photographer and other artist clients to protect their intellectual property rights in their expressive, creative works. It is smart for a photographer to build an ongoing relationship with a lawyer so that when he or she creates new work, the copyright registration process can begin immediately to maximize legal protections. If later questions arise such as whether another party is improperly using the client’s photos on a website or in an advertisement, for example, the attorney is ready to negotiate with the infringing party to resolve the violation. If necessary, legal counsel can proceed with a copyright infringement suit.

California example 

On November 8, the U.S. District Court for the Central District of California released its opinion in McGucken v. Chive Media Group, LLC, granting the defendant’s motion to dismiss a case in which a photographer alleged copyright infringement under federal copyright laws. McGucken alleged that Chive Media posted more than 90 of his photos on their websites after removing his watermarks and without his permission. 

Plaintiff must allege facts sufficient to meet infringement claim requirements 

The court dismissed the case because the photographer plaintiff did not provide — for 93 of the 94 photos — three required dates: the date infringement started, the date of copyright registration and the date the defendant first published the disputed works. The court dismissed the allegations of copyright infringement for the 93 images, saying that the photographer could not sufficiently plead the claim to recover statutory damages and legal fees under the law without providing the required dates. 

As to the remaining 94th photo, the court dismissed the claim pertaining to it also because plaintiff did not provide the date of first publication. The court also noted that the publication dates on the defendant’s URLs predated the picture’s copyright date, precluding recovery because infringement must happen after registration. The opinion says that “Congress sought to provide copyright owners with an incentive to register their copyrights promptly” as well as to “encourage potential infringers to check the Copyright Offices database.” 

The case is available on Westlaw at 2018 WL 5880751.