Over the years, Leyendecker & Lemire has represented numerous photographers.   One of the more frequent issues we discuss is the subject of photo credits.  While near and dear to the hearts of photographers, the topic of photo credits is not generally much of a legal issue.  This is mainly due to the fact that the issue of infringement has nothing to do with the issue of whether proper credit for the photograph was given.  In the past, I have had to explain to photographers that since the3rd party’s use of their image was not infringing (for one reason or another), there was not much we could do if the 3rd party left off the photo credit.  However, due to a recent decision from the influential 3rd Circuit, the next photographer that walks through my door might be a bit happier with the news I share with them.

This source of the jubilation is a decision that was handed down by the 3rd Circuit Court of Appeals, which decided that even when republishers’ use of a photo is deemed to be “fair use” (and therefore not infringing), the republisher swill still be liable to the copyright holder if they also fail to republish the photo credit information that appeared in the original photograph.

This liability stems from an interesting application of the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA).  These provisions, which prohibit anyone from intentionally removing or altering any “copyright management information”, were originally intended to prevent people from hacking CD’s DVD’s, or other digital measures to prevent the copying of digital content.   Copyright management information is broadly defined in the statute and includes “information conveyed in connection with copies … of a work …, including in digital form, …

[t]he name of, and other identifying information about, the author of a work”.   While the republication of a photograph might not be what the drafters had intended when writing the anti-circumvention provisions, one can see how the republication of a news article on the internet would qualify as a violation of the statue. If the threat of monetary damages isn’t enough (they range from a minimum of $2,500.00 to $25,000.00 per violation); the DMCA also has criminal provisions if the violation is intentional and made for commercial gain.

So what is the lesson to all of you bloggers and people republishing content on the web or otherwise? Do not remove photo credits, even if your use of the photo is covered under fair use* If the rest of the circuits follow suit, it is likely you will be liable for civil damages and potentially could be branded a criminal.  The underlying case is pretty entertaining as it involves some New Jersey radio shock jocks and contains claims for defamation after the defendants made a bad situation worse by belittling and ridiculing the photographer.

*Prior to determining if you qualify for the fair use defense you should seek the advice of a qualified attorney).