Mango v. Buzzfeed, Inc.
970 F.3d 167
2d Cir.2020Background
- Gregory Mango, a freelance photographer, licensed a photo (the Photo) to the New York Post, which published it with Mango’s gutter credit (photographer attribution).
- A BuzzFeed journalist downloaded the Photo from the New York Post and published it in a BuzzFeed article without Mango’s permission, replacing the gutter credit with the name of the subject’s law firm.
- Mango sued BuzzFeed for copyright infringement and for removal/alteration of copyright management information (CMI) under 17 U.S.C. § 1202(b)(3); BuzzFeed stipulated liability on the copyright claim.
- After a one-day bench trial the district court found BuzzFeed liable under the DMCA, awarded statutory damages for both claims, and awarded attorneys’ fees to Mango; BuzzFeed appealed only the DMCA ruling.
- The central legal dispute on appeal concerned whether § 1202(b)(3)’s second scienter element requires proof that the defendant knew its conduct would cause future third‑party infringement.
Issues
| Issue | Mango’s Argument | BuzzFeed’s Argument | Held |
|---|---|---|---|
| Whether § 1202(b)(3) requires proof that the defendant knew distribution would lead to future third‑party infringement | § 1202(b)(3) does not require knowledge of future third‑party infringement; constructive knowledge that distribution will "induce, enable, facilitate, or conceal an infringement" can cover concealment of the distributor’s own infringement | Liability requires proof that defendant knew its conduct would likely induce future infringement by third parties | The statute does not require knowledge of future third‑party infringement; it also covers concealment of an infringement (including the distributor’s own) and constructive knowledge of future concealment suffices |
| Whether a gutter credit on a third‑party site qualifies as CMI if not personally affixed by the copyright owner | A gutter credit is CMI; the DMCA does not require the copyright owner personally affix CMI | Argued Mango could not treat a credit placed by the New York Post as his CMI because he did not personally affix it | CMI need not be personally affixed by the copyright owner; a gutter credit is CMI |
| Whether Mango is entitled to attorneys’ fees for defending the appeal | Mango requested appellate fees, calling the appeal baseless | BuzzFeed opposed fees | Denied: the appeal raised a novel, non‑frivolous statutory‑interpretation issue; fees for the appeal were not warranted |
Key Cases Cited
- Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001) (discussing DMCA’s purpose to strengthen copyright protection in the digital age)
- Stevens v. Corelogic, Inc., 899 F.3d 666 (9th Cir. 2018) (Ninth Circuit decision holding plaintiffs failed to show distribution induced or concealed any specific infringement)
- Murphy v. Millenium Radio Grp. LLC, 650 F.3d 295 (3d Cir. 2011) (noting DMCA’s intent to expand protections for copyright owners)
- GC2 Inc. v. Int’l Game Tech., 391 F. Supp. 3d 828 (N.D. Ill. 2019) (discussing who may be treated as affixing CMI)
- Agence France-Presse v. Morel, [citation="645 F. App'x 86"] (2d Cir. 2016) (illustrating novel DMCA issues and appellate treatment)