Howarth v. Carsanaro Landscaping, Inc. (D. Mass. 22-cv-10998).

Photographer Morgan Howarth accused Anthony Carsanaro and his landscaping company, Carsanaro Landscaping, of utilizing one of Howarth’s photographs in a number of social media advertisements, asserting direct copyright infringement against the business, vicarious copyright infringement against the owner, and removal of copyright management information in violation of the DMCA.  When Carsanaro failed to respond or otherwise appear, default was entered.  Magistrate Judge Cabell has now recommended that default judgment on the copyright infringement claims, but recommended denial on the DMCA claims.

Howarth had asserted two counts of violation of the DMCA, first the alleged removal of Howarth’s copyright management information (“CMI”) and second for inserting false CMI that suggested that Carsanaro had rights in the photograph.  Judge Cabell found that the title and copyright notice that appeared on Howarth’s website adjacent to the photo constituted CMI, but noted that the complaint did not allege that Carsanaro had actually taken the photograph from Howarth’s site – if the defendants had obtained it elsewhere, there may have been no CMI for them to have removed.  He noted that the photograph appears elsewhere on the web without the CMI, which reduces the likelihood that the defendants themselves removed the CMI.  He further rejected the claim that the Defendants had added their own, false CMI, noting that the business’ logo, phone number and URL (which had been superimposed on the photograph) did not fit the definition of “Copyright Management Information” as defined by the statute – it did not purport to identify the photograph itself or to claim to have created or owned the photograph.

In terms of remedies, Judge Cabell accepted Howarth’s representation, backed up by pricing information on his website, that he would have charged $3,035 per year for use of one of his photographs in social media advertisements.  The photo had been used for more than two years, bringing the actual damages to $9,105.  He rejected Howarth’s request for multiplication of this amount to take into account damages to the “scarcity” of the photograph – Howarth assigned value to the limited dissemination of the work, but Judge Cabell found nothing in the record to suggest that the work was, in fact, “scarce” or that its appearance in the Carsanaro ad had resulted in widespread dissemination of the work.  Judge Cabell further awarded fees and costs, but reduced the fee award by 20% to account for the failed DMCA claim.