The US Court of Appeals for the Second Circuit clarified key elements of the Digital Millennium Copyright Act (DMCA) in a recent ruling involving photographer Elliott McGucken and the digital media platform Shutterstock Inc. The court affirmed the dismissal of McGucken’s claims against Shutterstock regarding a lack of scienter but remanded the case for further evaluation of the company’s eligibility for DMCA safe harbor protections.
In the case, designated as McGucken v. Shutterstock Inc., the court’s decision came on February 10, 2026. McGucken alleged that hundreds of his copyrighted photographs were uploaded to Shutterstock by three user accounts that collectively generated over $2,000 in licensing revenue. Following the receipt of takedown notices from McGucken, Shutterstock promptly removed the images within four days and terminated the accounts responsible for the uploads. Despite these actions, McGucken pursued legal action, claiming copyright infringement under 17 U.S.C. § 106 and false copyright management information (CMI) under 17 U.S.C. § 1202.
Initially, the district court granted summary judgment in favor of Shutterstock on all claims. McGucken subsequently appealed the decision. The Second Circuit agreed with the lower court that McGucken did not present sufficient evidence to establish that Shutterstock had actual knowledge of the false CMI concerning his works.
The court noted that Shutterstock’s practice of watermarking all images on its platform did not indicate that the company intentionally affixed false CMI to McGucken’s photographs to facilitate infringement. Additionally, the automated removal of CMI from uploaded images, a measure taken to protect against malware and to strip personally identifiable information, did not demonstrate that Shutterstock was aware it was removing McGucken’s CMI or that it had any intent to conceal infringement.
Safe Harbor Provisions Under Scrutiny
While the court upheld the dismissal of the CMI claims, it did recognize that Shutterstock qualifies as a “service provider” under the DMCA, possessing a policy against repeat infringers and not interfering with standard technical measures. The court also confirmed that Shutterstock lacked actual or red flag knowledge of the alleged infringement and acted promptly upon receiving notification.
However, the Second Circuit identified unresolved issues regarding the applicability of the safe harbor provision for copyright infringement claims. Specifically, it highlighted two critical elements: whether the storage of the images was “at the direction of the user” and whether Shutterstock had the “right and ability to control” the infringing activity.
The court indicated that a determination must be made regarding Shutterstock’s level of control over the uploaded material. This includes assessing whether the company exercised “substantive and discretionary control” over what content appeared on its platform, as well as the degree of aesthetic or editorial judgment used when selecting images for acceptance.
Furthermore, the court explained that safe harbor protections could be forfeited if a provider exerts “substantial control” over user activities. This includes instances where decisions about content approval extend beyond simple promotion or demotion. The court pointed out that control could also be inferred if a provider selectively reviews only a fraction of uploaded content rather than examining all submissions.
Given these unresolved issues, the Second Circuit vacated the summary judgment on the copyright claims and returned the case to the US District Court for the Southern District of New York for further proceedings.
The implications of this ruling are significant for both online service providers and copyright owners. The Second Circuit’s clarifications on “at the direction of a user” and the “right and ability to control” will likely shape the interpretation of DMCA safe harbor protections moving forward. Stakeholders in the digital media landscape will closely monitor how these standards are implemented in practice.
