Photo Licensing Service Qualifies for DMCA 512(c) Safe Harbor–McGucken v. ShutterStock
McGucken is a professional photographer who has appeared on the blog before. He claims that third party “contributors” uploaded his copyrighted photos to ShutterStock as part of ShutterStock’s licensing program. Specifically, McGucken claims that a total of 337 images were uploaded, of which 165 were downloaded and that led to 938 licenses. In total, those licenses generated $2,131 in revenues, split between the contributor and ShutterStock.
The tiny dollar value of the infringements makes me wonder what’s really going on here. Was this a play for statutory damages for the 337 uploaded images? Did McGucken think he could show actual damages that vastly exceeded ShutterStock’s revenues? Is the attorneys’ fee shift motivating some or all of this lawsuit? Otherwise, this case appears to be economically irrational. I’m sure ShutterStock would have written a $2,131 settlement check to avoid the litigation.
Last year, ShutterStock won a very similar lawsuit in Steinmetz v. ShutterStock. McGucken recycled arguments that failed in Steinmetz. As a result, ShutterStock qualifies for the 512(c) defense pretty easily.
Service Provider. ShutterStock provides online services. See Steinmetz.
Repeat Infringer Policies. ShutterStock proved these elements in the Steinmetz case. McGucken complained about ShutterStock’s handling of specific infringing users, but ShutterStock terminated one user on the first strike and the other on the second strike and the court’s fine with that.
Standard Technical Measures. McGucken claimed that his inclusion of metadata in his photos was a standard technical measure to locate infringement and that ShutterStock violated the element by stripping out the metadata automatically. The court responds that image metadata isn’t subject to the broad industry consensus required by the statutory definition.
Stored at a User’s Direction. McGucken made some arguments about ShutterStock’s efforts to curate photos and create thumbnails of photos in its database. Those arguments go nowhere.
Takedown Notices. McGucken surely knows how to send a proper 512(c)(3) notice, but he sent a non-qualifying demand to ShutterStock (it didn’t contain the “perjury” statement). The court says that demand didn’t confer actual knowledge. When McGucken did send a proper 512(c)(3) notice, ShutterStock removed the images in 4 days. Everyone conceded this was expeditious enough.
McGucken nevertheless pointed to some thumbnails that remained on the site longer. However, those weren’t displayed to the public, and McGucken’s takedown notices hadn’t specified the thumbnails’ URLs.
Right and Ability to Control. As with Steinmetz, ShutterStock didn’t control the uploaded when it didn’t invite or request them. ShutterStock’s pre-publication human review doesn’t change that conclusion.
TL;DR: “see Steinmetz.”
Case Citation: McGucken v. ShutterStock, Inc., 2023 WL 6390530 (SDNY Oct. 2, 2023)