District Judge Paul A. Engelmayer
Photojournalist Hirsch sued CBS for copyright infringement and alteration of copyright management information (CMI). He claimed it used a photograph he had taken in 2010, without license or consent, in a 2017 episode of its “48 Hours” television program. He also claimed CBS intentionally cropped his “gutter credit” out of the photograph. The court denied dismissal of Hirsch’s suit seeking judgment of infringement, damages of up to $150,000 per copyrighted work under 17 USC §504, and an accounting of CBS’ unlawful profits. Despite cropping, the photo used by CBS was an exact copy of Hirsch’s photograph. A reasonable jury could find CBS’s use of the photo met the test of substantial quantitative similarity and was not de minimis as a matter of law. The court could not conclude, as a matter of law, that CBS’s use of the photo was a fair use. CBS’s fair use claim depends on an assessment of the context and content of the “48 Hours” episode. Further, Hirsch’s allegations that the removal of “gutter credit” information was intentional and knowing and undertaken in support of CBS’s infringement of the photo gave rise to a plausible inference of intentional removal of CMI contrary to the Digital Millennium Copyright Act.