970 F.3d 167 (2nd Cir. 2020), 19-446-cv, Mango v. Buzzfeed, Inc.

Docket Nº:19-446-cv
Citation:970 F.3d 167
Opinion Judge:Park, Circuit Judge:
Party Name:Gregory MANGO, Plaintiff-Appellee, v. BUZZFEED, INC., Defendant-Appellant.
Attorney:Michelle Mancino Marsh ( Lindsay Korotkin, Peter L. Menchini, on the brief), Arent Fox LLP, New York, N.Y. for Defendant-Appellant. James H. Freeman, Liebowitz Law Firm, PLLC, Valley Stream, N.Y. for Plaintiff-Appellee.
Judge Panel:Before: Livingston, Park, and Nardini, Circuit Judges.
Case Date:August 13, 2020
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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970 F.3d 167 (2nd Cir. 2020)

Gregory MANGO, Plaintiff-Appellee,


BUZZFEED, INC., Defendant-Appellant.

No. 19-446-cv

United States Court of Appeals, Second Circuit

August 13, 2020

Argued: February 24, 2020.

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The district court (Marrero, J.)

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Michelle Mancino Marsh ( Lindsay Korotkin, Peter L. Menchini, on the brief), Arent Fox LLP, New York, N.Y. for Defendant-Appellant.

James H. Freeman, Liebowitz Law Firm, PLLC, Valley Stream, N.Y. for Plaintiff-Appellee.

Before: Livingston, Park, and Nardini, Circuit Judges.

Park, Circuit Judge:

This appeal concerns the publication of a photograph without the photographer's permission or correct attribution. BuzzFeed, Inc., an online media company, published a news article containing a photograph of a man taken by Gregory Mango, a freelance photographer, without crediting him. Mango sued BuzzFeed for removal or alteration of copyright management information ("CMI") under the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. § 1202(b)(3), and the district court awarded statutory damages after a one-day bench trial.

A removal-or-alteration-of-CMI claim under Section 1202(b)(3) of the DMCA requires a plaintiff to show that the defendant distributed copyrighted work "knowing that [CMI] has been removed or altered" without authorization and "knowing, or ... having reasonable grounds to know, that [such distribution] will induce, enable, facilitate, or conceal [a copyright] infringement." 17 U.S.C. § 1202(b). BuzzFeed argues that it cannot be held liable under the DMCA because there was no evidence that it knew its conduct would lead to future, third-party infringement of Mango's copyright. We hold that the DMCA does not require such evidence and affirm the judgment of the district court.


A. Facts

Mango is a freelance photographer who regularly licenses his photos to newspapers, including the New York Post. BuzzFeed is an online media company that produces news, entertainment, and lifestyle content on its websites and various social media platforms. This case concerns a photograph Mango took of a man named Raymond Parker (the "Photo"), who was the lead figure in a discrimination lawsuit filed by federal prosecutors against the City of New York. In January 2017, the New York Post licensed the Photo and published it alongside an article titled "Bharara sues city over NYPD rejecting man with HIV." Below the Photo, the article included Mango's name, an attribution known in the industry as a "gutter credit."

Almost three months later, a BuzzFeed journalist named Michael Hayes published an article about Parker and included the Photo. Hayes did not ask Mango for permission to use the Photo. Instead of listing Mango's name in the gutter credit, Hayes listed the name of Parker's attorneys' law firm, Fisher & Taubenfeld. A six-year veteran of the company, Hayes had written over 1,000 articles for BuzzFeed, all of which included a photograph, and it was

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Hayes's custom to give credit to photographers by "name or by photo outlet." App'x 157. Hayes had asked Fisher & Taubenfeld for a photo of Parker, but ultimately downloaded the Photo from the New York Post website himself. Hayes claimed that one of Parker's attorneys at Fisher & Taubenfeld "advised" him to use the Photo he had downloaded. App'x 194. Parker's attorney did not recall such a conversation, but said she had difficulty imagining that she gave Hayes "permission to use a picture that [she] had no authority to give permission for." App'x 219.

B. Procedural History

Mango filed a two-count complaint against BuzzFeed in the U.S. District Court for the Southern District of New York, alleging (1) copyright infringement under the Copyright Act, 17 U.S.C. § § 106, 501, and (2) removal or alteration of CMI under the DMCA, 17 U.S.C. § 1202(b). See Mango v. BuzzFeed, Inc., 356 F.Supp.3d 368, 371 (S.D.N.Y. 2019). Mango sought statutory damages of $30,000 for his copyright infringement claim, $5,000 for his DMCA claim, and attorneys' fees under 17 U.S.C. § 505. Id. at 374, 378-79. Prior to trial, BuzzFeed stipulated to liability on the copyright infringement count. Id. at 371. After a one-day bench trial, the district court found BuzzFeed liable on the DMCA count and awarded damages on both counts. Id. at 379.

The district court held that under the "double-scienter" requirement of Section 1202(b)(3) of the DMCA, plaintiffs must prove (1) "actual knowledge ... that CMI was removed and/or altered without permission," and (2) "constructive knowledge... [that] such distribution 'will induce, enable, facilitate, or conceal an infringement.'" Id. at 377 (quoting 17 U.S.C. § 1202(b)). After concluding that Mango's gutter credit constituted CMI and that BuzzFeed distributed the Photo with altered and missing CMI, the district court held that (1) BuzzFeed knew CMI had been removed and altered without permission, rejecting as not credible Hayes's claims that he believed he had obtained permission; and (2) "BuzzFeed had reasonable grounds to know that such removal and distribution concealed a[n] ... infringement." Id. at 373-74, 377. The court awarded $3,750 in statutory damages for copyright infringement and $5,000 in statutory damages for violation of the DMCA. Id. at 379. It also ruled that Mango was entitled to reasonable attorneys' fees and costs, id., and later awarded $65,132.50 in fees and $1,810.03 in costs under 17 U.S.C. § 505. See Mango v. BuzzFeed, Inc., 397 F.Supp.3d 368, 371 (S.D.N.Y. 2019) This appeal, which concerns only the DMCA claim, followed.


A. Standard of Review

"We review questions of statutory interpretation de novo. " United States v. Epskamp, 832 F.3d 154, 160 (2d Cir. 2016) (citation omitted). "[A]fter a bench trial, we review the district court's finding of fact for clear error and its conclusions of law de novo. Mixed questions of law and fact are also reviewed de novo. " Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 187 n.2 (2d Cir. 2013) (citation omitted). "This Court is not allowed to second-guess the factfinder's credibility assessments, and where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." United States v. Williams, 943 F.3d 606, 610 (2d Cir. 2019) (internal quotation marks and citation omitted).

B. The Digital Millennium Copyright Act

Congress enacted the DMCA in 1998 "to strengthen copyright protection in the digital

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age." Universal City Studios, Inc. v. Corley, 273 F.3d 429, 435 (2d Cir. 2001). "Fearful that the ease with which pirates could copy and distribute a copyrightable work in digital form was overwhelming the capacity of conventional copyright enforcement to find and enjoin unlawfully copied material, Congress sought to combat copyright piracy in its earlier stages, before the work was even copied." Id.

The DMCA prohibits the removal or alteration of CMI "conveyed in connection with" creative works. 17 U.S.C. § 1202(c). CMI includes "[t]he name of, and other identifying information about, the author ... [or] copyright owner of the work." Id. § 1202(c)(2)-(3).1 Section 1202(b) of the DMCA states: No person shall, without the authority of the copyright owner or the law ...

(3) distribute, import for distribution, or publicly perform works, copies of works, or phonorecords, knowing that copyright management information has been removed or altered without authority of the copyright owner or the law,

knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.

Id. § 1202(b) (emphasis added). Section 1202(b)(3) contains a so-called "double-scienter" requirement: the defendant who distributed improperly attributed copyrighted...

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