Day” and “Ring Bearer Gift”/”To Our Ring Bearer”), and the copyright notice on every page of
the plaintiff’s web site.^1377
The court rejected all bases for the CMI claim. The court held that the poetrygift.com
name could not be CMI because the copyright registrations attached to the complaint showed
Personal Keepsakes, Inc., not poetrygift.com, as the owner of the copyright. Thus,
poetrygift.com was at best an indicator of the seller of the product, not of the copyright owner.
The titles could not be CMI because the copyright registrations did not list the titles of the works
as they appeared on the plaintiff’s web site, but rather referred to them as “Personal Keepsakes
VI” and “Personal Keepsakes X.” One could therefore not search the copyright titles as used on
the web site to see if they were registered. The court concluded that allowing a plaintiff to make
a DMCA claim based on alleged CMI that does not link up in any way to the copyright
registration would be an invitation to unfair litigation against parties who had tried to tread
carefully to avoid copyright infringement.^1378
In addition, the copyright notice that appeared on every page of the plaintiff’s web site
was not CMI with respect to the allegedly copied poems. The web site notice read “Web Site
and Original Verses – © (1991-2012).” The court found that, although it was plausible that the
copyright notice referred to the poems at issue, the complaint did not suggest the poems at issue
were “original verses” as referenced in the notice.^1379
Finally, the court ruled that the plaintiff had stated a case of false CMI against one of the
defendants, Personalizationmall.com, when it put a copyright notice in the name of its “Walk
with Jesus Baptism Keepsake” that incorporated the same or a very similar poem as the
plaintiff’s product, and that copyright notice followed a line in the poem that formed the title
“Walk with Jesus.” Consequently, the court held that it was plausible that the notice could refer
to the poem, and not the product as a whole. The court also rejected the plaintiff’s argument that
statements in each of the defendants’ web site Terms of Use referencing that the content or
intellectual property on the web site was owned by the defendants constituted false CMI in
connection with the poems, because the Terms of Use statements were not close to the
poems.^1380 The court cited another district court decision requiring that a defendant must remove
the CMI from the body or the area around the work to violate the DMCA, and concluded that “as
a matter of law, if a general copyright notice appears on an entirely different webpage than the
work at issue, then that CMI is not ‘conveyed’ with the work and no claim will lie under the
DMCA. [The plaintiff] cannot base a DMCA claim on Defendants’ general copyright notices
placed elsewhere on the site.”^1381
(^1377) Personal Keepsakes, Inc. v. PersonalizationMall.com, 2012 U.S. Dist. LEXIS 15280 at 1-2, 17-18 (N.D. Ill.
Feb. 8, 2012).
(^1378) Id. at 18-19.
(^1379) Id. at 19-20.
(^1380) Id. at 20-22.
(^1381) Id. at *23. The court gave the plaintiff an opportunity to amend its DMCA claims if it could do so in good faith
based on the guidance in the opinion. Id.