Mango v. Buzzfeed, Inc.
356 F. Supp. 3d 368
S.D. Ill.2019Background
- Mango, a professional photographer, took a photograph of Raymond Parker that was licensed to the New York Post and credited with a gutter credit reading "Gregory P. Mango."
- BuzzFeed published the same photograph on its website in April 2017 without a license; the photo on BuzzFeed bore a gutter credit listing "Fisher & Taubenfeld."
- BuzzFeed stipulated liability for copyright infringement before trial; trial focused on damages and a separate DMCA claim for removal/alteration/distribution of copyright management information (CMI).
- BuzzFeed reporter Gregory Hayes downloaded the image from the New York Post and claimed he had oral permission from Parker’s attorney (Fisher); Fisher did not recall granting permission.
- The court found Hayes not credible on key points, credited Fisher’s uncertain but plausible testimony, and concluded Hayes altered/removed the gutter credit and knew or had reasonable grounds to know the attribution was altered and that it concealed infringement.
- Court awarded statutory damages: $3,750 for copyright infringement (5× a $750 hypothetical license) and $5,000 for the DMCA §1202 violation; Mango was granted leave to apply for attorney’s fees under 17 U.S.C. §505.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Copyright infringement — damages and willfulness | Mango sought $30,000 statutory; argued willful infringement justifies multiplier | BuzzFeed contested willfulness and licensing value | Court found willful infringement, used $750 hypothetical license ×5 multiplier = $3,750 statutory damages |
| DMCA §1202(b) — distribution with removed/altered CMI | Mango argued BuzzFeed distributed work with altered/missing CMI and had actual knowledge and reasonable grounds to know it would conceal infringement | BuzzFeed argued hyperlinking to original undermined intent to conceal; disputed knowledge | Court held gutter credit is CMI; BuzzFeed knowingly distributed altered/missing CMI and had reasonable grounds to know distribution would conceal infringement; liable under §1202(b); $5,000 statutory damages awarded |
| Whether gutter credits constitute CMI | Mango: gutter credit adjacent to article is CMI "conveyed in connection with" the work | BuzzFeed implicitly disputed scope by arguing hyperlink showed no concealment | Court held gutter credits are CMI even if not embedded in file or metadata; they are "conveyed in connection with" the work |
| Attorneys’ fees under 17 U.S.C. §505 | Mango sought fees; argued defendant’s defenses were defective and deterrence required | BuzzFeed contested amount (had not prevailed on merits defense) | Court found BuzzFeed’s defenses objectively weak and granted prevailing-party fee entitlement; Mango to submit fee application |
Key Cases Cited
- Bryant v. Media Right Prods., Inc., 603 F.3d 135 (2d Cir. 2010) (factors for statutory damages and willfulness inquiry)
- Agence France Presse v. Morel, 769 F.Supp.2d 295 (S.D.N.Y. 2011) (gutter credits and CMI conveyance)
- Agence France Presse v. Morel, 934 F.Supp.2d 547 (S.D.N.Y. 2013) (considerations in willfulness analysis)
- Barcroft Media, Ltd. v. Coed Media Grp., LLC, 297 F.Supp.3d 339 (S.D.N.Y. 2017) (approach to choosing a licensing-fee "proxy" for statutory damages)
- Broad. Music, Inc. v. Prana Hosp., Inc., 158 F.Supp.3d 184 (S.D.N.Y. 2016) (awards often a multiple of hypothetical license fee)
- Starr Intern. Co., Inc. v. American Intern. Group, Inc., 648 F.Supp.2d 546 (S.D.N.Y. 2009) (credibility assessment guidance)