Advanced Copyright Issues on the Internet - Fenwick & West LLP

copyright notice from the illustrations. The district court granted summary judgment on the CMIclaims on the ground that the plaintiff failed to present any evidence that the defendantsintentionally removed or altered the copyright information or that the defendants knew that thecopyright information had been removed. 961On appeal, the Sixth Circuit affirmed. The decision is important because the SixthCircuit ruled for the first time that vicarious liability may apply with respect to violations of theCMI provisions (the rationale of the holding would presumably also apply to the anticircumventionprovisions of the DMCA). In particular, the court held that, regardless of thedefendants’ actual knowledge of the removal or alteration of the copyright information, theycould be held vicariously liable if, just as in the case of ordinary infringement, they had the rightand ability to supervise the conduct constituting the violation and they had an obvious and directfinancial interest in the conduct. 962The court noted that, although the record was not clear in this regard, it was reasonable toinfer that the advertising agency retained the ability to supervise the development of thecommercial. And both defendants had direct financial interests in the exploitation of thecopyrighted materials. As a result, the court ruled that, even though the CMI provisions requirethe intentional removal of CMI or the distribution of copies of works “knowing” that CMI hasbeen removed or altered, “it is inappropriate to permit summary judgment to be granted based onthe defendants’ lack of actual knowledge of the removal of the copyright managementinformation when they may be vicariously liable for its removal.” 963 Thus, although the plaintiffhad to prove that the direct violators of the CMI provisions possessed actual knowledge of theunauthorized change to the CMI, the plaintiff need not prove that Nextel and its advertisingagency, as vicarious infringers, had such knowledge.Ultimately, however, the Sixth Circuit affirmed the district court’s grant of summaryjudgment to the defendants on the ground that, even if the persons from whom the advertisingagency had obtained the material containing the illustrations upon which the commercial wasbased had removed the copyright information from the illustrations, those persons testifiedwithout contradiction that they believed the materials had been authorized for use in televisioncommercials. Accordingly, such removal was not done with reasonable grounds to know that itwould “induce, enable, facilitate, or conceal an infringement,” as required by Section 1202(b). 964(iv) Schiffer Publishing, Ltd. v. Chronicle Books, LLCIn Schiffer Publishing, Ltd. v. Chronicle Books, LLC, 965 the plaintiffs owned copyrightsin various photographs of fabrics, which the defendants allegedly infringed by scanning intodigital form for inclusion into a book published by the defendants titled 1000 Fabrics. The961962963964965Id. at 1370.Id. at 1371.Id. at 1372.Id. at 1373.73 U.S.P.Q.2d 1090 (E.D. Pa. 2004).- 214 -