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Remove Watermarks Online? Be Prepared to Answer to the DMCA

watermarks

Google recently made headlines in the photography community when it released a paper authored by several of its engineers that essentially concluded that a watermark on any photograph is vulnerable to being removed en masse because of the way that most stock photo agencies present images on their websites.

Although framed as “Making Visible Watermarks More Effective,” the research paper and the blog post that articulates its findings in plain English, effectively serve as a how-to manual for anyone interested in building a tool to systematically remove watermarks online. The paper specifically explains that websites such as stock photo libraries, which tend to place watermarks in the same place across each image in their catalogs, are particularly susceptible because artificial intelligence can easily predict where the watermark appears and undertake steps to remove it.

Of course, replacing blemished pixels in an image is not a particularly groundbreaking development (“Content Aware Fill,” anyone?), and asking a computer to guess where future watermarks appear based on where they have appeared in the past does not strike me as especially inventive either. Still, the research made waves among the photographic community.

Google’s news wasn’t all doom and gloom, though. The Googlers offered a solution, albeit one that was every bit as banal as the problem. Google’s crack research team revealed that to outwit the robots that destroy watermarks, image owners should change where they put the watermarks, and the appearance of those watermarks – essentially, make them less consistent – so it’s harder for the robots to apply their powers of machine learning to predict what the next one will look like or where it will appear.

Photographer – 1; Robots – 0

Fascinating stuff, to be sure. But I thought of a different solution: The law.

remove watermarks online
An example of a watermark on a photo posted online.

Watermarks and the DMCA

Most people have heard of the Digital Millennium Copyright Act (DMCA) for at least one of two major provisions: (1) the so-called “safe harbor” provisions that immunize certain online service providers from liability in exchange for agreeing, among other things, to take down content upon receiving a complaint from the copyright owner; and (2) the “anti-circumvention” provisions that make it illegal to hack through the digital rights management software used to restrict access to copyrighted content, such as the Advanced Access Content System (AACS) that protects content on Blu-ray discs.

But there is a lesser-known aspect of the DMCA known clunkily as the provision on “integrity of copyright management information.” Known more conveniently by its abbreviated name CMI, “Section 1202 makes it illegal to falsify or remove copyright management information (CMI). It also makes it illegal to distribute knowing that the CMI has been removed or altered.

What is CMI Anyway?

Section 1202 of the DMCA lists eight broad categories, including:

  1. The title and other information identifying the work, including the information set forth on a notice of copyright.
  2. The name of, and other identifying information about, the author of a work.
  3. The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.
  4. With the exception of public performances of works by radio and television broadcast stations, the name of, and other identifying information about, a performer whose performance is fixed in a work other than an audiovisual work.
  5. With the exception of public performances of works by radio and television broadcast stations, in the case of an audiovisual work, the name of, and other identifying information about, a writer, performer, or director who is credited in the audiovisual work.
  6. Terms and conditions for use of the work.
  7. Identifying numbers or symbols referring to such information or links to such information.
  8. Such other information as the Register of Copyrights may prescribe by regulation, except that the Register of Copyrights may not require the provision of any information concerning the user of a copyrighted work.

It’s clear, then, that a visible copyright notice, would be considered CMI under DMCA laws. Similarly, a visible title appearing across an image would constitute CMI. Embedded metadata such as IPTC or PLUS information that provides “identifying information” about the work or the author would also plainly qualify. Courts have also held that credit lines, such as watermarks, appearing on or next to photos, as well links to photographers’ websites, such as those that appear next to photos on social media services, also clearly qualify. To the extent they carry the name and other identifying information about a particular work or the author behind it, then watermarks too would almost certainly constitute CMI.

dmca
If you remove a watermark from an online image, be prepared to face the consequences under the DMCA.

Violations of DMCA Section 1202

Violations of the DMCA Section 1202 fall into two major categories: falsifying CMI, and removing or altering CMI.

The law renders it unlawful to knowingly falsify CMI or distribute works with false CMI with the intent to “induce, enable, facilitate, or conceal” copyright infringement. In other words, falsifying CMI is only illegal only if the person doing it knows they are doing it, and it is done with the intent to advance some sort of infringing behavior.

With respect to removing or altering CMI, the rule is slightly different. In a removal context, the law renders it illegal to intentionally remove CMI, or distribute a work knowing the CMI has been removed or altered, having reasonable grounds to know that it will “induce, enable, facilitate, or conceal” copyright infringement.

Thus, in the removal or alteration context, the standard is a bit broader: a copyright owner need only prove that the person who removed the CMI had “reasonable grounds to know” that what they were doing would advance an infringement, whereas in a case where the CMI is falsified, the person who falsified it must do so with actual intent to infringe.

It’s worth clarifying that infringements of DMCA Section 1202 are separate from any infringement of the underlying copyright. For example, if I steal an image from a stock photo library, remove the watermark, and use it in a project without first securing a license (assuming that there is no applicable exception, such as fair use), I have violated not only Section 1202 for removing the watermark but I have also engaged in run-of-the-mill copyright infringement for using the image without a license.

Remedies

So what happens if someone violates Section 1202 by removing watermarks? The remedies available are similar to those available when someone infringes the copyright: the copyright owner can obtain a court order barring the infringer from continuing his or her conduct, and the copyright owner can obtain certain damages.

Like in regular copyright infringement, there are two types of damages available. The first is “actual damages,” which requires that the copyright owner prove either how much money the infringer made as a result of the infringement, or how much the copyright owner lost. The other is “statutory damages,” which do not require any evidence of actual loss. For copyright infringement, those damages range anywhere from $750 to $150,000 per work infringed; for a CMI claim, the range is smaller, with $2,500 at the low end and $25,000 at the high end (see Steve Schlackman’s recent piece, How Much Money Can I Get if My Copyright Is Infringed for more on statutory damages).

Beyond the lower range, statutory damages in CMI claims differ from those in infringement claims in one other significant respect: CMI claims do not require registration of the copyright. Recall that in a traditional copyright case, a copyright owner must have registered his or her work either before the infringement took place or within three months of publication to qualify for statutory damages. Not so in a CMI claim. Accordingly, if the facts of a particular case support it, CMI claims can be a useful way to secure a damages award even if the underlying work was not timely registered, and proving actual damages for infringement is unrealistic (as it is in most cases).

What This All Means for Artists

Using a tool to systematically remove watermarks from stock image libraries, such as the tool described in Google’s recent paper, would almost certainly violate DMCA Section 1202. More practically, though, the prohibitions against falsifying, removing, or altering CMI offer a useful tool for copyright owners seeking to enforce their rights against online infringers. While litigation is always an expensive, laborious last resort, including a DMCA Section 1202 claim to a lawsuit, or even just a cease and desist letter, can help boost an artist’s prospects for recovery, especially in those cases where the underlying works are unregistered (or were not timely registered) and the likelihood of recovery for copyright infringement may be relatively slim.

Have you ever removed watermarks online? Did you realize it was a violation of the DMCA?

About the author

Chris Reed

Chris Reed is a Los Angeles-based photographer and lawyer. He practices copyright law in the  media and entertainment industries and is the author of Copyright Workflow for Photographers: Protecting, Managing, and Sharing Digital Images from Peachpit Press.

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