(ii) Cases Not Requiring CMI to be Part of a
Technological System or Process
a. McClatchey v. The Associated PressThe court in McClatchey v. The Associated Press^1311 rejected the ruling of the IQ Group
court that CMI must function as a component of an automated copyright protection management
system in order to be protected by Section 1202 of the DMCA. In the McClatchey case, the
plaintiff was the owner of a photograph she took on the morning of Sept. 11, 2001 as she
observed United flight 93 crash into a field near her house. The photograph, which the plaintiff
titled “End of Serenity,” depicted a mushroom cloud caused by the crash, with a red barn and the
rolling hills of Pennsylvania in the foreground. The plaintiff alleged that, in the course of an
interview with her, a reporter from The Associated Press took a photograph of “End of Serenity”
from a binder of materials she showed the reporter, then without authorization distributed the
photo on the AP newswire together with an accompanying article written by the reporter.^1312
The plaintiff brought a claim for violation of Section 1202 of the DMCA on the ground
that she had included title and copyright information on “End of Serenity,” which appeared in the
photograph of it that the reporter took, but which was cropped out of the version of the
photograph distributed by AP. Citing the IQ Group case, AP contended that Section 1202 was
not applicable because the plaintiff’s copyright notice on her photograph was not “digital.” The
plaintiff testified in her deposition that she used a computer program called “Advanced
Brochures” in a two-step process to print the title, her name, and the copyright notice on all
printouts of her photograph. The court ruled that this technological process was sufficient to
come within a digital “copyright management system” as defined in the statute. Moreover, the
court noted that Section 1202(c) defines CMI to include “any” of the information set forth in the
eight categories enumerated, “including in digital form.” To avoid rendering those terms
superfluous, the court held the statute must also protect non-digital information. Accordingly,
the court concluded that the statute was applicable to the facts of the case.^1313
AP sought summary judgment on the CMI claim on the ground that the metadata
accompanying the photograph distributed by AP stated that the photograph was taken by the
plaintiff. However, the court noted that the metadata also identified the plaintiff as a “stringer,”
from which recipients could have inferred that AP owned the copyright, and that there was no
clear statement notifying recipients that the plaintiff owned the copyright to “End of Serenity.”
In addition, the court noted a factual dispute concerning whether the reporter had intentionally
cropped the copyright notice out of the photograph, as the plaintiff alleged. Accordingly, the
court denied AP’s motion for summary judgment.^1314
b. Associated Press v. All Headline News Corp.(^1311) 2007 U.S. Dist. LEXIS 17768 (W.D. Pa. Mar. 9, 2007).
(^1312) Id. at 3-4.
(^1313) Id. at 4-5, 15.
(^1314) Id. at *15-17.