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Wikimedia Commons is a file repository making available media content (images, sound and video clips) to everyone, and also serves as a supporting repository for other projects hosted by the Wikimedia Foundation. Images and other media on Wikimedia Commons fall under the Commons licensing policy, and are most frequently licensed under CC BY and CC BY-SA. Each media file has its licensing specified on its file description page.
Currently, the Commons community strongly discourages, but does not strictly prohibit, the upload of images with digitally embedded watermarks (visible tags imprinted in an image with a copyright or attribution notice). The Commons community has, from time to time, discussed this policy. The asserted argument against the use of watermarks is that watermarks detract from the reusability of the work, and that instead Commons should encourage the use of in-image computer-readable metadata (usually called “EXIF data”) to convey information about authorship and licensing. In the recent discussions, Commons contributors have questioned whether images with embedded watermarks should be uploaded to Commons at all, and whether watermarks should be removed from images that have already been uploaded.
Potential legal risks when removing watermarks
There are at least two legal risks under US law to consider with regards to removal of a watermark from an image licensed under Creative Commons (CC). First, the removal could conceivably constitute a violation of the DMCA's prohibition on removal of “copyright management information” (CMI). Second, it could possibly constitute a violation of the CC licenses. This post will provide some basic background and considerations on these two particular legal concerns. However, if you would like legal advice about this issue, particularly with regards to particular files or watermarks, you should consult an attorney.
These specific questions have not yet been tested in US courts, meaning legal arguments both in favor and against the current practice of watermark removal in images of Wikimedia Commons could be valid. When assessing the described risks, it may be useful to consider the author's intent when she applies a watermark to her work (particularly, her intent of having proper attribution linked to her work), while analyzing whether such author actually has a legitimate copyright claim over the work.
DMCA’s prohibition on removing copyright management information
If watermarks are CMI, and CMI is removed by someone who has “reasonable grounds to know, that [the removal] will induce, enable, facilitate, or conceal an infringement”, then removing watermarks may be a violation of 17 U.S.C. § 1202(b).
Are watermarks "CMI"?
Section 1202(c) of the DMCA defines "copyright management information" as certain types of "information conveyed in connection with copies … of a work …, including in digital form, …: (2) [t]he name of, and other identifying information about, the author of a work …".
Two interpretations of what CMI includes
Section 1202(c) and the definition of CMI have been the subject of different interpretations by several district courts and the US Court of Appeals for the Third Circuit.
In early cases, district courts in New Jersey in 2006 and in California in 2007 narrowly interpreted the provision, arguing that Sec. 1202(c) only protects CMI functioning as a component of an automated copyright protection or management system. Such an interpretation of CMI would not likely include watermarks used in the Commons context.
Later district court rulings (in Pennsylvania in 2007 and New York in 2009) defined the term in a "broader approach” that was “willing to expand the CMI protection beyond digitally stored CMI to digitally placed CMI, such as digitally embedded watermarks in printed photos." In 2011, the Court of Appeals for the Third Circuit confirmed this interpretation, and held that CMI is not as strictly defined as the early cases had held. Instead, the 2011 ruling said that a cause of action under Section 1202 may arise "whenever the types of information listed in Section 1202(c)(1)-(8) ... [are] falsified or removed, regardless of the form in which that information is conveyed." This type of interpretation would likely include watermarks used in the Commons context which contain the name of the author (or any of the other qualities listed in Section 1202(c)(1)-(8)).
CMI or contains CMI?
Even if one interprets the definition of CMI to include watermarks, it remains unclear whether the watermarks themselves are considered CMI or whether the watermarks simply contain CMI. If the watermark, in and of itself, is considered CMI, falsification or removal of the watermark could potentially lead to liability under the DMCA. However, if the information contained within the watermark (such as the author's name) is considered CMI, rather than the watermark itself, changing the form in which the information appears (such as moving the author's name from a watermark to EXIF data) may not run afoul of the DMCA. Unfortunately, the courts have not clarified this ambiguity to date. See below for how this ambiguity may impact a DMCA violation analysis.
Knowledge requirement in Section 1202
If a court determines that watermarks fall within the definition of CMI and are CMI in and of themselves (rather than simply contain CMI), the court will next look to 17 U.S.C. § 1202(b). Section 1202(b) of the DMCA deals with the removal or alteration of copyright management information. Subsection (b) - also known as the "removal clause" - states that
[n]o person shall, without the authority of the copyright owner or the law [...] intentionally remove or alter any copyright management information [...] having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.
Our perspective is that this section could plausibly be interpreted in two ways, which could lead to different outcomes when analyzing the overall question. Although there is no relevant caselaw that has studied the key provision on how the knowledge requirement is configured, different district courts have offered arguments that could be used to support both interpretations, as explained below.
First possible interpretation: removal or alteration of the CMI will enable the infringement, leading to a DMCA violation.
It is possible to argue that a person removing a watermark has “reasonable grounds to know that [the removal or alteration of CMI] will … enable … an infringement” [emphasis added], even if no infringement occurs, thereby violating the DMCA.
From our perspective, there are three possible counter-arguments. First, because the content distributed through Commons is required to be under a free license, it is arguable that watermark removal does not “enable … an infringement” [emphasis added] since the license’s requirements can still be met. (See below for more discussion of license compliance.) This argument has been brought before court, but not taken into consideration in any judgment.
Second, since Section 1202 is in the same chapter as the DMCA’s provision addressing circumvention of copyright protection systems, it is arguable that the removal clause (section 1202(b)) refers to CMIs that specifically work with digital rights management systems (DRM), rather than other non-DRM CMI, like watermarks. If this were to be the case, then removing non-DRM CMI would not “enable” infringement. However, given the caselaw cited above, courts may not be receptive to this argument.
Finally, some authors have claimed that Section 1202(b) requires a showing of actual infringement resulting from the removal or alteration. In other words, because the intention to infringe or induce infringement of copyright is one of the two elements to be proven, a copyright infringement claim must be fully developed before attempting to assert a CMI claim. District courts have used the same argument in their decisions, establishing that because no infringement was proven, it could not be determined that there was an intent to facilitate copyright infringement. In any case, none of these potential counter-arguments appear to be ironclad defenses, and each situation must be studied on a case-by-case basis.
Second possible interpretation: section 1202 protects the information itself, and not the form in which it is presented, hence, relocating the information on the CMI would not lead to a DMCA violation.
On the other side, one could argue that Section 1202 protects the "information" itself, not the form in which it is conveyed. Thus, if someone simply modifies "the form" of the CMI (e.g. moving the information contained in a watermark from directly on top of the work to the licensing information section outside of the work), instead of removing or altering "the information" (e.g. the name of the author or copyright holder or the title of the work), there would not be a violation.
One difficulty present in this argument is that what constitutes an "alteration of a CMI" is unclear. The statute itself prohibits "alteration", for which someone could argue that even if the exact same information is preserved, simply relocating it (from the watermark to the file's EXIF data, for example) could be prohibited under this provision. Defending this argument would require interpreting the statute narrowly, so that it prohibits only alterations of the CMI and excludes alteration in the format or presentation of the CMI. This issue has never come before the courts and so is not an ironclad defense for watermark removal.
DMCA/Copyright management information: Conclusion
Although the caselaw is unsettled, the recent trend of US courts seem to indicate that at least the content contained in digitally embedded watermarks (and possibly the form of the watermark itself) may be considered copyright management information under DMCA § 1202. Similarly, whether removal or alteration of CMI occurs when the contents of a watermark is moved is very much unsettled. The courts may interpret this scenario in any number of ways, two of which are: (i) a broad interpretation, in which a person removing or altering a watermark might have reasonable grounds to know that the removal or alteration might “enable” infringement, and therefore that removal of watermarks could violate § 1202; or (ii) a narrower interpretation, in which the clause does not protect the specific formatting of the CMI, and therefore a change from a visual watermark to an "invisible one" (such as EXIF data) does not violate § 1202.
There are good-faith arguments and caselaw supporting both interpretations, so neither position is ironclad. As a result, individual editors who are considering removing watermarks should seriously consider the legal issues involved and consider consulting an attorney before doing so.
Creative Commons’ requirements on retention of copyright notices
Wikimedia Commons suggests that "all licenses accepted on Commons permit this kind of modification", when explaining how to remove watermarks from images. Community members in past discussions have mentioned two primary arguments that the CC licenses allow removal of watermarks. First, Section 4(c) of CC BY-SA 3.0 allows “reasonable” changes to required “credits”, as long as the required information is not lost. Second, the license explicitly permits in Section 3(a) the creation of adaptations of the work, which arguably may include removal of watermarks.
However, one could counter these arguments by interpreting a visible watermark as a "copyright notice", thereby being required to be kept intact by Sections 4(a) and 4(b) of the license.
CC requirements to retain and “keep intact” copyright information
Attribution requirement of Section 4(c)
There are strong arguments that flexibility exists in the way that the attribution requirements of the CC BY-SA 3.0 license may be met. CC BY-SA 3.0 Section 4(c) states that all credit requirements contained in Section 4(c), including the requirements to preserve names, URIs, and copyright notices, may be “implemented in any reasonable manner”. CC BY-SA 4.0 makes this position more explicit, stating that the requirement to “retain” a copyright notice may be satisfied "in any reasonable manner based on the medium, means, and context in which You Share the Licensed Material” [emphasis added].
In addition, Section 4(c) states that a licensee must provide the name(s) of the author(s) and URI (the information typically contained in a watermark) in a manner "reasonable to the medium or means" he or she is utilizing [emphasis added]. Again, this emphasizes that the information contained in a watermark can be provided in a flexible manner.
Outside of the license text, Creative Commons themselves have characterized their licenses as flexible regarding attribution, stating in their FAQ that "CC licenses allow for flexibility in the way credit is provided depending on the medium, means, and context in which a licensee is redistributing licensed material."
Retention of copyright notices requirement of Sections 4(a) and 4(b)
The license refers to retention of “copyright notices” in more than one place - not just in Section 4(c), but also in Sections 4(a) and 4(b). Those sections require that “copyright notices” must be “kept intact”, and do not have comparable “reasonable manner” language like that found in Section 4(c).
Copyright notices in the US have a specific statutory meaning -- the © symbol, year of first publication, and name of copyright owner. So, under US copyright law, the requirements of Sections 4(a) and 4(b) likely do not apply to most watermarks, which are typically not copyright notices in the formal sense. However, this meaning may not be apparent to many users of the licenses, who may think of “copyright notice” in a more colloquial sense, or may interpret it in light of their local statute. And even in the US, some watermarks may contain copyright notices in the formal sense. In these cases, the license may be ambiguous given the conflicting requirements in Sections 4(a) and 4(b) as compared to Section 4(c).
Adaptations are not relevant to the watermark analysis under CC
Many people have raised the point that CC licenses permit adaptation, and argued that because of this allowance, watermarks can clearly be removed. Our position is that the permission to adapt, while important to the movement overall, is not relevant to the question of whether or not the license permits removal of watermarks. There are two reasons for this position.
First, as noted above, the requirements that could be interpreted to prevent removal of a watermark are in Sections 4(a), 4(b), and 4(c), but these apply in the same manner whether or not an adaptation has occurred. The language in Sections 4(a) and 4(b) are identical, with Section 4(a) applying if an unmodified work is being distributed, and Section 4(b) applying if an adaptation is being distributed. As a result, the same requirement applies whether or not an adaptation is created. Similarly, the requirements of Section 4(c) must be met when distributing either the original work or adaptations. Again, the obligation applies whether or not an adaptation has occurred.
Second, removing a watermark likely does not create an adaptation under US copyright law, because the removal is not a creative act. A transformation must add originality to make the resultant image an actual adaptation, as explained in CC’s FAQ on this topic. In most cases, cropping out a watermark is arguably more a reproduction of a portion of the first work rather than an actual derivative. As a result, the license’s permission to create an adaptation is again likely irrelevant to the question of whether or not watermark removal is permitted.
Creative Commons: Conclusion
Our interpretation of the Creative Commons licenses is that removal of watermarks and replacement with equivalent copyright information in other forms is most likely not a violation of the Creative Commons licenses, because the license contains language that allows “reasonable” changes to information about names and URLs. However, there is a weak but good-faith counter-argument that the license requires exact preservation of “copyright notices”, which could be interpreted to require preservation of watermarks. To be clear, this good-faith counter-argument refers to the colloquial sense of what may be interpreted as a "copyright notice" - not to a copyright notice in the statutory meaning (the © symbol, year of first publication, and name of copyright owner). In the case of watermarks containing statutory copyright notices, the license may be more ambiguous, strengthening the argument in favor of requiring preservation of such watermarks.
Legal implications in jurisdictions outside the US
Copyright management information is addressed in international instruments, such as WIPO's Copyright Treaty as well as by non-US jurisdictions, including the European Union. Some European authors and organizations such as IFPI (representing recording companies worldwide) have also analyzed this topic.
Foreign statutes and regulations may be applicable to this case, depending on the location of the author and the person removing the CMI. In those cases, the analysis of watermark removal and alteration may differ from the ones we have presented above. Editors who remove watermarks and may be liable under international laws should assess their own risk tolerance, possibly consulting their own attorney.
We invite the Wikimedia Commons community to continue discussing the open proposal for a new policy, taking into account the background and considerations described.
- As seen on community discussions on the topic in September, 2012, March, 2013 and December, 2013, and an open proposal for a new policy.
- Wikimedia Commons currently offers a guide on the technical details on removing different kind of watermarks, and a guide on manipulating Metadata (Exif information).
- Authors and uploaders of works that under US law are in the public domain, such as paintings from the 18th and 19th century, do not have a clear copyright claim over the work. Yet again, considering if a work is or is not in the public domain is something that should be done on a case-by-case basis, and to be certain, you should consult an attorney in your jurisdiction to do so.
- IQ Grp., Ltd. v. Wiesner Pub., LLC, 409 F. Supp. 2d 587 (D.N.J. 2006).
- Textile Secrets Int'l, Inc. v. Ya-Ya Brand Inc., 524 F. Supp. 2d 1184 (C.D. Cal. 2007).
- McClatchey v. Associated Press, 305-CV-145, 2007 WL 1630261 (W.D. Pa. June 4, 2007).
- Associated Press v. All Headline News Corp., 608 F. Supp. 2d 454, 458 (S.D.N.Y. 2009).
- Susuk Lim, A Survey of the DMCA's Copyright Management Information Protections: The DMCA's CMI Landscape after All Headline News and McClatchey, 6 Wash J.L. Tech. & Arts 297 (2011).
- Murphy v. Millennium Radio Grp. LLC, 650 F.3d 295 (3d Cir. 2011).
- (c) Definition.— As used in this section, the term "copyright management information" means any of the following information conveyed in connection with copies or phonorecords of a work or performances or displays of a work, including in digital form, except that such term does not include any personally identifying information about a user of a work or of a copy, phonorecord, performance, or display of a work: (1) The title and other information identifying the work, including the information set forth on a notice of copyright. (2) The name of, and other identifying information about, the author of a work. (3) The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright. (4) With the exception of public performances of works by radio and television broadcast stations, the name of, and other identifying information about, a performer whose performance is fixed in a work other than an audiovisual work. (5) With the exception of public performances of works by radio and television broadcast stations, in the case of an audiovisual work, the name of, and other identifying information about, a writer, performer, or director who is credited in the audiovisual work. (6) Terms and conditions for use of the work. (7) Identifying numbers or symbols referring to such information or links to such information. (8) Such other information as the Register of Copyrights may prescribe by regulation, except that the Register of Copyrights may not require the provision of any information concerning the user of a copyrighted work.
- There is no relevant caselaw we are aware of addressing the definition or the scope of the knowledge requirement introduced in § 1202. Current caselaw addresses the scope and definition of CMI, as well as whether the existence of the infringement or the nature of the business is relevant for the claim. However, district courts have different perspectives on this regard, with decisions that could be interpreted in different ways.
- In BanxCorp v. Costco Wholesale Corp., 723 F. Supp. 2d 596 - Dist. Court, SD New York 2010, the District Court affirmed that "[p]laintiffs here need only allege (1) the existence of CMI on the BanxQuote Indices; (2) removal and/or alteration of that information; and (3) that the removal and/or alteration was done intentionally." The court did not to require the existence of an infringement to prove the DMCA claim, as other district courts (see footnote 14) have introduced. In McClatchey v. Associated Press, Dist. Court, WD Pennsylvania 2007, the court held that because of the nature of the Associated Press’ business, "a reasonable factfinder could conclude that by cropping out the copyright notice, Defendant had the requisite intent to induce, enable, facilitate or conceal infringement." Again, the intent could be found without analyzing if in fact an infringement had occurred.
- In Agence France Presse v. Morel, 934 F. Supp. 2d 547 - Dist. Court, SD New York 2013, the plaintiff presented evidence that "it believed its conduct was licensed, and therefore the distribution of photographs was not infringing." However, since this fact was disputed, and the issue was before the court on summary judgment, the court assumed the conduct was not licensed and did not address the legal question.
- For extensive discussion of the standard of proof that must be met to show a violation of this requirement, see Jay Dratler, Jr., Cyberlaw: Intellectual Property in the Digital Millenium § 4.03 (2000).
- See Dratler, supra note 10 at 4-24.2., "The two short words ‘it will’ in the postable to Section 1202(b) import two additional elements of the removal-or-alteration offense. There must be an act of infringement, and the infringing act must have a causal nexus to the removal or alteration of the CMI."
- In Steele v. Bongiovi, 784 F. Supp. 2d 94 - Dist. Court, D. Massachusetts 2011, the district court stated that "[b]ecause the Court found that no infringement took place, and the alleged alterations would not have changed that determination, Steele cannot prove that the defendants knew the alterations would facilitate copyright infringement." On a similar note, in Kelly v. Arriba Soft Corp., 77 F. Supp. 2d 1116 - Dist. Court, CD California 1999, the Court determined that "[d]efendant did not have 'reasonable grounds to know' it would cause its users to infringe Plaintiff's copyrights. Defendant warns its users about the possibility of use restrictions on the images in its index, and instructs them to check with the originating Web sites before copying and using those images, even in reduced thumbnail form." In that sense, as users had the possibility to access the CMI in the source website, despite the CMI was in fact removed from the image to create smaller thumbnails, the court concludes there is no infringement, thus, no DMCA claim is configured.
- As read in Commons:Help:Removing_watermarks.
- The community has rejected this interpretation of the licenses.
- 17 USC 401(b).
- supra, note 1.