image: Refinery29
Refinery29 is being sued for reproducing “a copyrighted photograph of a package of chicken cutlets” in a recent article, entitled, “This Ad Is Going Viral — For A Hilarious Reason.” According to photographer Dennis Clark’s lawsuit, which was filed last week in the Southern District of New York against the New York-based media company, he “photographed a package of chicken cutlets incorrectly labeled ‘children cutlets’” in October 2016, which he “then licensed to the New York Post.”
New York-based Clark, “a professional photojournalist in the business of licensing his photographs to online, print, and television stations for a fee,” alleges that “on October 10, 2016, the New York Post ran an article that featured the photograph on its web edition, entitled, ‘Supermarket advertises fresh children cutlets.’” He also claims: “On October 11, 2016, Refinery ran an article on [its] website, entitled, ‘This Ad Is Going Viral-For A Hilarious Reason,’” which “prominently featured” his photograph.
Clark further asserts in his complaint that “Refinery did not license the photograph from [him] for its article, nor did Refinery have [his] permission or consent to publish the photograph on its website.” Instead, “Refinery removed Clark’s gutter credit and did not attribute the photograph to anyone.”
Clark's photo on Refinery29's site
In addition to citing copyright infringement, Clark alleges that Refinery29 is on the hook for violating the integrity of copyright management information. Something of a budding new trend in copyright law (we saw this claim cited in recent cases, including ones against Tiffany & Co. and Tibi, and in the case that the late artist Dash Snow’s estate filed against McDonald’s), copyright infringement plaintiffs are increasingly adding this claim to their complaints.
The statute, itself (17 U.S. Code § 1202), is derived from the Digital Millennium Copyright Act ("DMCA"), copyright-specific legislation, which was signed into law in 1998, criminalizing the production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works. Section 1202(b) – which Clark cites in his complaint – prohibits the intentional removal or alteration of any "copyright management information," the knowing distribution of altered copyright management information, and the knowing distribution of works where the copyright management information has been removed or altered.
Note: Section 1202(c) of the DMCA defines the term "copyright management information" to include: the title and other information identifying the work and the name of, and other identifying information about, the author of a work – among other things. In the case at hand, the copyright management information is “Clark’s name … in a gutter credit identifying him as the photographer of the photograph.”
Clark goes on to state: “[T]he falsification, alteration and/or removal of said copyright management information was made by Refinery intentionally, knowingly and with the intent to induce, enable, facilitate, or conceal their infringement of [his] copyrights in the photograph. Refinery also knew, or should have known, that such falsification, alteration and/or removal of said copyright management information would induce, enable, facilitate, or conceal their infringement of [Clark’s] copyrights in the ‘photograph.”
With the foregoing in mind, Clark has asked the court for temporary and permanent injunctive relief (which would bar Refinery29 from using the photograph), as well as “actual damages and [Refinery29’s] profits, gains or advantages of any kind attributable to Defendant’s infringement of [his] photograph.”
* The case is Clark v. Refinery 29 Inc., 1:17-CV-01209 (SDNY).
