We have previously written on how expensive it can be to copy photos found on social media and use them for commercial purposes, as a result of copyright infringement claims. On October 3, 2022, the Ninth Circuit explored a few more copyright issues, specifically: who can bring the lawsuit, who controls social media pages, and did the defendant remove copyright management information? (APL Microscopic, LLC v. Steenblock, No. 21-55745 (9th Cir. Oct. 3, 2022) (2022 WL 4830687).)
The case involves microscopic photographs. The plaintiff (APL) claimed that the defendant (Dr. Steenblock) individually and through two of his companies infringed two APL’s copyrights by posting versions of the photographs created by APL’s owner on Dr. Steenblock’s social media accounts. The defendants moved for dismissal, claiming that
(a) APL had no standing because APL’s owner, rather than APL itself, owned the copyright in the photos,
(b) Anyone could have created the social media pages, and
(c) APL could not prove that the defendants intentionally removed the copyright watermark on the photos.
At this very early stage of the case (motion to dismiss), the trial court agreed with the defendants on all three points and dismissed the case. APL appealed.
The Court of Appeals for the Ninth Circuit agreed with APL on all three points and reversed and remanded the case back to the trial court.
1. Ownership. Although everyone agreed that the copyright registrations showed that APL’s owner was the registered owner of the copyright in the photos, the plaintiff’s complaint alleged that ownership had been assigned to APL. The trial court ruled that APL had not offered any evidence that the assignment had occurred, but the Ninth Circuit ruled that APL did not have to provide such evidence at the motion to dismiss stage. In other words, APL’s assertion of ownership in the complaint was sufficient at the time.
2. Ownership of the social media pages. Although anyone could have created the social media pages, in this case, APL’s complaint contained screenshots of the relevant social media pages. Those attachments included profiles that displayed Dr. Steenblock’s business address and the phrase “Stem Cell Medical Solutions,” which the Ninth Circuit found was “a business name similar to one of the URLs for Steenblock’s website, www.stemcellmd.org.” In addition, one of the profiles specifically named “Dr. David A. Steenblock” and used “Personalized Regenerative Medicine,” a phrase that appeared on Dr. Steenblock’s website. The screenshots attached to APL’s complaint also showed cropped versions of the photos posted by those profiles. At this early stage of the case, taking those facts as true, the Ninth Circuit ruled, “APL plausibly alleges that Steenblock controlled sites that published versions of the Works in violation of APL’s copyrights.”
3. Intentional Removal of Copyright Management Information. Although the US. copyright law does not require that you include a copyright notice on your works, it can be a violation of the copyright law for someone else to remove that information (among many other forms of “copyright management information” or “CMI”) under 17 U.S.C. § 1202(b). APL provided screenshots of its original photos with the copyright notice as watermarks, and provided screenshots from Dr. Steenblock’s social media accounts of those photos that lacked the watermarks. The Ninth Circuit concluded: “Because APL plausibly alleges that Steenblock controlled the social media pages, and the Works are missing the watermark when presented on those pages, we can draw a “reasonable inference” that Steenblock knowingly removed the CMI.”
Even though this case is in the early stages, it provides some valuable lessons:
1. Copyright Office records are an excellent place to look for ownership information, but assignments can take place and not be recorded there.
2. If you believe that the site is a fake but in your name, first try getting it taken down and keep copies of your efforts.
3. Although copyright notices are not required in the U.S., they can be very useful in infringement lawsuits, to help demonstrate ownership and to add a claim of intentional removal of copyright management information to your federal complaint.