Advanced Copyright Law on the Internet

(ii) Cases re False CMI

a. Schiffer Publishing, Ltd. v. Chronicle Books, LLC

In Schiffer Publishing, Ltd. v. Chronicle Books, LLC,^1391 the plaintiffs owned copyrights
in various photographs of fabrics, which the defendants allegedly infringed by scanning into
digital form for inclusion into a book published by the defendants titled 1000 Fabrics. The
plaintiffs also alleged that the defendants had violated Sections 1202(a) and (b) by falsely
naming themselves as the copyright holders of the pictures published in 1000 Patterns and by
“removing” the plaintiffs’ copyright notices from those pictures.^1392

The court found no violation of the CMI provisions of the DMCA. The court noted that
to recover for a violation of Section 1202(a), a plaintiff must prove that the defendant knew the
CMI on a distributed work was false and distributed the false CMI with the intent to aid
infringement. The court ruled that the plaintiffs had not shown that the defendants possessed the
requisite knowledge or intent to violate the relevant copyrights. Although there was evidence at
trial that the defendants instructed its employees to avoid using too many series of page images
from any single book containing the plaintiffs’ photographs, the court found the evidence
indicated only that the defendants knew the plaintiffs had copyrights in their books as
compilations, not that they knew the individual photographs contained therein were copyright
protected. Other evidence at trial suggested that the defendants erroneously believed the
plaintiffs had no copyright in their individual photographs because they contained insufficient
creativity. Accordingly, the intent requirement of Section 1202(a) was not met.^1393

The court also found no violation of Section 1201(b) because the only CMI the plaintiffs
included with their work were notices of copyright that appeared on the inside covers of their
books. The individual photographs that were the subject of the action did not contain any CMI
whatsoever, either on or near the images themselves. The court ruled that to establish a violation
of Section 1202(b), the defendants must remove CMI from the body of, or area around, the
plaintiffs’ work. Because the plaintiffs had failed to demonstrate the defendants had done so, the
claim for violation of Section 1202(b) failed.^1394

b. Agence France Presse v. Morel

The facts of this case are set forth in Section II.G.1(b)(1)(ii) above. In ruling on the
motion of Agence France Presse (AFP) to dismiss the claim against it for falsification of CMI,
the court found Morel’s allegations that AFP labeled his photos with the credit lines
“AFP/Getty/Daniel Morel” and “AFP/Getty/Lisandro Suero” to be sufficient to plead
falsification of CMI. AFP had not contested that those credit lines constituted CMI. Morel also
set forth a factual basis for alleging that AFP knew the CMI was false and intended to facilitate

(^1391) 73 U.S.P.Q.2d 1090 (E.D. Pa. 2004).
(^1392) Id. at 1101.
(^1393) Id. at 1102.
(^1394) Id.