Licensing and Protecting Digital Content: New Guidance for Digital Content Creators Regarding Metadata

Description

In a recent decision, the Eleventh Circuit raised the bar for photographers and other digital creators who license their creative works. On the issue of first impression, the court interpreted DMCA Section 1202(b), which provides that a person may not "intentionally remove or alter any copyright management information" or distribute a work "knowing that the copyright management information has been removed or altered" without the copyright owner's permission. The court held that Section 1202(b) includes a double scienter requirement. A person must know or have "reasonable grounds to know that [such actions] will induce, enable, facilitate, or conceal" copyright infringement.

The photographer in question embedded copyright management information (CMI) into the metadata of his photos. The court joined two other circuit courts and held liability is triggered when the copyright owner demonstrates the alleged infringer knew or should have known its removal or changing the CMI would likely result in infringement. This heightened standard makes it harder for copyright owners to succeed in DMCA litigation.

CMI has become a standard tool that artists and other creators use to enforce their IP rights. The decision has implications for digital artists licensing their work. Digital creators and their counsel should rethink the language of the licensing agreement to ensure the art is protected.

Listen as our panel examines the recent Eleventh Circuit decision addressing copyright metadata. The panel will discuss the existing protection for copyright metadata in 17 USC 1202, the heightened standard set by the Eleventh Circuit and its implications for photographers and other digital creators. The panel will offer best practices for licensing creative works and protecting IP rights in the works.