copyright criminal-law internet intellectual-property fair-use
Is it illegal to remove a watermark?
<p>Inspired by this poorly worded question on <a href="https://graphicdesign.stackexchange.com/">graphicdesign.stackexchange</a>:</p>
<p><a href="https://graphicdesign.stackexchange.com/questions/104524/i-want-to-remove-a-text-watermark-can-this-be-done-by-having-2-layers-and-pain?noredirect=1#comment154441_104524">I want to remove a text watermark</a></p>
<h1>Is illegal to remove watermarks?</h1>
<hr />
<p>Off the top of my head I can think of 3 possible legitimate reasons:</p>
<ol>
<li>The watermark was created by the author who accidentally deletes the original. Now he want's to know how to remove the watermark.</li>
<li>The work is <a href="https://en.wikipedia.org/wiki/Abandonment_(legal)#Abandonment_of_copyright" rel="nofollow noreferrer">abandoned copyright</a> (grey area?) For example: The watermark could be a logo from a screenshot from an old TV network that no longer exists. Question asker could ask how to remove that watermark for personal non-commercial reasons.</li>
<li>Someone who just wants to learn a skill. <em>IAMAL so the following statement may be incorrect. Correct me if I'm wrong.</em> It would not be considered copyright infringement if someone downloads a sample watermarked image just for the purpose to remove the watermark. After removing the watermark the image is immediately deleted. The image isn't technically being used in any original work. <strong>Downloading a publicly displayed watermarked image to your desktop is not illegal as far as I know. Modifying it to learn a skill and then deleting it isn't illegal either.</strong> So, no law is being broken.</li>
</ol>
<p>I think #3 might be the weakest argument I can make because I'm not a (US) copyright expert. However, I still believe there are some legitimate reasons to allow watermark removal questions like this. <em>(If the question isn't worded as poorly)</em></p>
<hr />
<p>For an example of abandoned copyright I have the following source. I know it doesn't have to do with art specifically but it proves that <strong>copyrighted material can be abandoned</strong> and even given a free pass to some extent. (again in my favorite color grey)</p>
<blockquote>
<p>The Internet Archive has created an archive of what it describes as
&quot;vintage software&quot;, as a way to preserve them.  The project
advocated for an exemption from the United States Digital Millennium
Copyright Act to permit them to bypass copy protection, which was
approved in 2003 for a period of three years.  The exemption was
renewed in 2006, and as of 27 October 2009, has been indefinitely
extended pending further rulemakings (<a href="https://en.wikipedia.org/wiki/Abandonware" rel="nofollow noreferrer">https://en.wikipedia.org/wiki/Abandonware</a>)</p>
</blockquote>

<p>From the perspective of US law:</p>

<p>Scenario 1:  Removing the watermark is perfectly legal, obviously.  You own the copyright.</p>

<p>Scenario 2:  Abandonware is not really a thing in the US when it comes to copyright (and the <a href="https://en.wikipedia.org/wiki/Abandonware#US_copyright_law" rel="nofollow noreferrer">Wikipedia article</a> you linked says this.)  Even if the company went out of business, the copyright almost certainly went to <em>somebody</em> - the former owners, the creditors, etc.  As far as the Internet Archive goes, they are taking advantage of an <a href="https://www.copyright.gov/fedreg/2006/71fr68472.html" rel="nofollow noreferrer">exemption</a> in the DMCA's <a href="https://www.law.cornell.edu/uscode/text/17/1201" rel="nofollow noreferrer">anti-circumvention provisions</a>, along with the copyright exemption found in <a href="https://www.law.cornell.edu/uscode/text/17/108" rel="nofollow noreferrer">17 USC § 108</a>.  But both of these exemptions require you to be a "library or archive" to take advantage of them, and you are not a library or archive, so you cannot take advantage of either.  </p>

<p>As a practical matter, if the software is <em>really</em> abandoned it's unlikely that anyone will actually come after you for infringement, but that's not quite the same as it being legal - you could be on the hook for up to $150,000 in statutory damages per work infringed, if the owner does sue you.</p>

<p>You could attempt to claim <a href="https://www.law.cornell.edu/uscode/text/17/107" rel="nofollow noreferrer">fair use</a>, of course.  If the image is abandoned you might get a favorable result on factor 4 of the fair use test (the effect on the market for the original) since there's no market if nobody can find the owner.  But it would depend on the other factors; that alone wouldn't get you fair use.</p>

<p>Scenario 3:  I'm not sure where you get the idea that downloading a copyrighted image to your desktop is somehow protected.  It isn't automatically legal to save a copy of something just because it's on the Internet.  And the existence of a watermark may indicate that someone wanted to <em>prevent</em> the file from being copied.  </p>

<p>The website containing the image will likely have terms of use, which may indicate whether or not you're allowed to make a copy.  For example, <a href="https://stackexchange.com/legal">Stack Exchange's TOS</a> says in part:</p>

<blockquote>
  <p>Subscriber may download or copy the Content, and other items displayed on the Network for download, for personal use, provided that Subscriber maintains all copyright and other notices contained in such Content.</p>
</blockquote>

<p>Removing a watermark is essentially creating a modified version of a work. This is inherently infringing unless:</p>

<ul>
<li>the work is not copyrighted (unlikely for a watermarked digital work, although a digital version of a public domain work that is a straight transcription or slavish copy with no added content or formatting <strong>might</strong> have no valid copyright); or</li>
<li>you have permission to modify the work, perhaps because it is under  a license which allows modification, such as a CC-BY license; or</li>
<li>creating the modified version is a fair use (in US law only); or</li>
<li>creating the modified version is permitted by some specific exemption in the copyright law of your jurisdiction (unlikely to apply here).</li>
</ul>

<p>Distributing the un-watermarked version will be a further infringement unless one of the above circumstances applies.</p>

<ul>
<li>In the original question's scenario 1 the modifier has permission, as s/he holds the copyright.</li>
<li>In scenario 2 fair use might apply, but probably not. </li>
<li>In scenario 3 fair use again might apply.</li>
</ul>

<p>According to <a href="https://www.copyright.gov/title17/92chap12.html" rel="nofollow noreferrer">Section 1202 of the U.S. Copyright Act</a>:</p>
<blockquote>
<p>No person shall, without the authority of the copyright owner or the law—</p>
<p>(1) intentionally remove or alter any copyright management information,</p>
<p>(2) distribute or import for distribution copyright management information knowing that the copyright management information has been removed or altered without authority of the copyright owner or the law</p>
</blockquote>
<p>I don't know of any rulings that point to watermarks specifically but as per subsection C, &quot;copyright management information&quot; is defined to include the following, which indicate watermarks are valid:</p>
<blockquote>
<p>...<br />
2) The name of, and other identifying information about, the author of a work.<br />
...<br />
7) Identifying numbers or symbols referring to such information or links to such information</p>
</blockquote>
<p>You may elect to recover either actual damages or statutory damages:</p>
<blockquote>
<p>Except as otherwise provided in this title, a person committing a violation of section 1201 or 1202 is liable for either</p>
<p>(A) the actual damages and any additional profits of the violator</p>
<p>(B) At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1202 in the sum of not less than $2,500 or more than $25,000.</p>
</blockquote>
