IP Law Daily, COPYRIGHT—2d Cir.: Shutterstock’s eligibility for DMCA safe harbor is thrown into question, (Feb 11, 2026)

By Matthew Hersh, J.D.

A jury will have to decide whether Shutterstock “curated” its collection of photographs.

A federal jury will have to decide whether a prominent photo licensing service applied its “aesthetic, editorial, or marketing judgment” to user uploads and therefore lost its right to protection under the safe harbor provision of the Digital Millennium Copyright Act, the U.S. Court of Appeals for the Second Circuit has held. The court, in reversing in part a district court’s grant of summary judgment, emphasized that while a service provider could engage in merely “rote and mechanical content screening” like excluding unlawful material or enforcing terms of service, it could not “curate[d] its collection of images for display” and still preserve its safe harbor status (McGucken v. Shutterstock, Inc., No. 23-7652 (2d Cir. Feb. 10, 2026)).

The lawsuit was brought by Elliot McGucken, a photographer who specializes in fine art photography. (McGucken is no stranger to these pages—his lawsuits against Newsweek Magazine and other publications have been covered here and here). The photographer took aim at Shutterstock, the widely known photograph hosting service. In his complaint, the photographer alleged that the photo service infringed upon his exclusive rights to hundreds of his photographs by hosting them on its website. The photographer also claimed that the photo hosting service violated the Digital Millennium Copyright Act, or DMCA, by removing metadata from his photographs that would identify him as the author of those photographs and by adding a watermark that suggested that the photographs actually belonged to the service.

The district court granted Shutterstock’s motion for summary judgment, leading to this appeal.

Alleged DMCA violations. The court affirmed the grant of summary judgment on the DMCA claims. In order to show that Shutterstock violated the DMCA by adding its own watermark to his photographs, the court noted, the photographer would have to show that Shutterstock provided or distributed false copyright management information “knowingly and with the intent to induce, enable, facilitate, or conceal infringement” (17 U.S.C. § 1202(a)). In order to show that Shutterstock violated the DMCA by removing his own identifying information, the court noted, he would have to show that Shutterstock did so while “knowing, or... having reasonable grounds to know’ that such distribution [would] ‘induce, enable, facilitate, or conceal an infringement.’” 17 U.S.C. § 1202(b). The photographer failed to produce triable evidence on either count.

With respect to Shutterstock’s affixation of the watermark, the court found, the district court correctly found that the evidence pointed wholly in favor of Shutterstock. The district court relied on a sworn statement by a Shutterstock employee stating that Shutterstock automatically affixes its watermark to every image on its site “‘in order to prevent third parties from using the images without a license’ and that [the practice] ‘is intended and understood to identify Shutterstock as the source or distributor of the image, rather than as the author or copyright owner.’” The photographer, by contrast, the court noted, pointed to “no evidence suggesting that Shutterstock affixed its watermark to his images—or, indeed, to any images—with knowledge that it constituted false CMI and for the purpose of concealing copyright infringement.” Thus, the court concluded that the district court rightly found that there was no triable issue under Section 1202(a).

The Section 1202(b) claim failed for much the same reason, the court found. While Shutterstock concededly knew that it removed CMI from every image ingested into its system, the court observed, “Shutterstock explained—and McGucken failed to refute—that it removes metadata from all images primarily to avoid computer viruses and the dissemination of personally identifiable information, and not for any reasons related to infringement.” Nothing in the record suggested that Shutterstock removed the photographer’s CMI or distributed his work knowing that the CMI had been removed without his consent, the court noted. Nor was there evidence, the court noted, demonstrating that Shutterstock removed CMI from the photographer’s images knowing or having reasonable grounds to know that it would “induce, enable, facilitate, or conceal an infringement.” This claim, too, the court concluded, was rightly rejected.

DMCA safe harbor—threshold criteria. The district court also got it right, the court held, when it found that Shutterstock met the three threshold criteria that a party must meet to qualify for any of the safe harbors created by the DMCA. In order to meet those criteria, the court noted, Shutterstock would have to show (1) that it was a “service provider” as defined in the DMCA, (2) that it had “adopted and reasonably implemented... a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers,” and (3) that it did not “interfere with standard technical measures... that are used by copyright owners to identify or protect copyrighted works.” Shutterstock satisfied those three requirements, the court found.

First, the court found that Shutterstock was clearly a “service provider” under the DMCA. In order to qualify as a service provider, the court noted, it must be “a provider of online services or network access, or the operator of facilities therefor.” This was “a broad definition that covers any online platform designed to assist users in doing something that benefits those users,” the court noted. Nor did it matter that Shutterstock’s services included the licensing of works, the court found. Shutterstock pointed to one 2013 district court decision, Agence France Press v. Morel, which concluded that an entity that “licens[es] copyrighted material online” was not a service provider because licensing “more closely resembles the mere sale of goods... than facilitating users’ activities online.” But that limitation simply has “no basis in the broad statutory definition of ‘service provider,” the court found. Shutterstock therefore met this prong of the test.

Shutterstock also had “adopted and reasonably implemented” a repeat infringer policy, the court found. In doing so, the court noted, it was appropriate to adopt the Ninth Circuit’s conclusion that a repeat infringer policy is reasonable “if, under appropriate circumstances, the service provider terminates users who repeatedly or blatantly infringe copyright.” Moreover, the court emphasized, again drawing from Ninth Circuit doctrine, the rule does not “require perfection”—“[e]ligibility for the safe harbor is not lost just because some repeat infringers may have slipped through the provider’s net for screening them out and terminating their access.” Under that standard, the court found Shutterstock easily qualified. Indeed, the court noted, all that the photographer had shown is that Shutterstock failed to terminate one repeat infringer. “Considering that Shutterstock hosts hundreds of millions of images and videos, uploaded by millions of contributors,” the court emphasized, “the failure to terminate one repeat infringer, standing alone, cannot establish unreasonable implementation. To hold otherwise would require a standard of perfection not contemplated by the statute.”

Finally, the court noted, the district court rightly found that Shutterstock did not interfere with standard technical measures designed to protect copyright holders. Under the DMCA, the court noted, a “standard technical measure” must, among other requirements, “have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process.” The photographer argued that the metadata that Shutterstock removed from his photos qualified as such a standard technical measure—but the record simply did not support that, the court found. The photographer’s only record citation in support, the court noted, was a statement from his expert that defines metadata as a tool “[p]hotographers rely on... to organize, sort, and track their works both inside their studios and across the internet.” That statement identified no “consensus,” the court found, “let alone any ‘multi-industry standards process’ that would have reached such a consensus.” The district court got this issue right as well, according to the court.

DMCA safe harbor—actual or red flag knowledge. The district court also rightly concluded that Shutterstock was not aware of the alleged infringement of the photographer’s work, according to the court. To overcome the safe harbor on this issue, the court noted, the photographer would have to show that Shutterstock was actually aware of the infringement or was “subjectively aware of facts that would have made the specific infringement objectively obvious to a reasonable person” (typically referred to as “red flag” knowledge). The photographer asserted that Shutterstock reviewed the metadata for his images and that such metadata would have suggested that he was the author, or at least that the contributor who submitted the image was not the author. But the photographer cited nothing in the record suggesting that any Shutterstock employee “ever reviewed the metadata (or lack thereof) associated with his images that were uploaded to the platform,” the court found. Thus, the court concluded, the record did not support a finding of “red flag” knowledge.

DMCA safe harbor—expeditious removal of infringing material. The district court also rightly concluded that Shutterstock moved expeditiously to remove the infringing material once the photographer pointed it out in a proper DMCA notice, the court found. “Shutterstock’s removal of the noticed images within four days of McGucken’s DMCA compliant takedown notice,” the court found, “was sufficient to fulfill its obligation to ‘respond[] expeditiously to remove, or disable access to, infringing material.’”

DMCA safe harbor—storage at the direction of a user. But while the district court had it right up to this point, the court found it erred with respect to two critical DMCA tests. To qualify for the safe harbor, the court noted, Shutterstock’s burden is to establish that any infringing acts happened “by reason of the storage at the direction of a user of material that resides” on its platform (17 U.S.C. § 512(c)(1)). In applying that test, the court noted, the task is to decide “whether a given service provider plays a sufficiently active role in the process by which material appears on its platform such that, as a result, its storage and display of infringing material is no longer meaningfully at the user’s direction.” Contrary to the district court’s conclusion, the court found a reasonable factfinder could conclude that Shutterstock failed to meet its burden on this test.

Before turning to its analysis of the facts in the record, the court first grappled with a broader question of law: what does it mean for materials to appear on a platform “at the direction of a user” in the first place? Under the Ninth Circuit’s test, the court noted, infringing material is stored at the direction of the user “if the service provider played no role in making that infringing material accessible on its site or if the service provider carried out activities that were ‘narrowly directed’ towards enhancing the accessibility of the posts.” That was consistent with Second Circuit doctrine, the court found. Under those precedents, the court noted, “the nature of the service provider’s review of user materials” was central to analyzing the applicability of the DMCA. Thus, the court noted, “a service provider may engage in rote and mechanical content screening, like excluding unlawful material, enforcing terms of service, or limiting uploads to selected categories of consumer preferences.” On the other hand, the court noted, “a service provider is likely to run afoul of [the DMCA] if it is applying its aesthetic, editorial, or marketing judgment to determine which user uploads it accepts.”

Under that newly fashioned test, the court found that a reasonable jury could find that Shutterstock applied “aesthetic, editorial, or marketing judgment” to its review of user-uploaded material. To begin, the court noted, when a user submits an image to Shutterstock, the image does not immediately appear on the website; rather, the contributor must wait, sometimes for hours, until they receive an email from Shutterstock letting them know which of their images were accepted. “That fact is not dispositive,” the court noted, “but it suggests some intervention by Shutterstock between a user upload and the appearance of material on the platform.” Moreover, the court noted, Shutterstock’s website states that it “has high standards and only accepts a portion of the images submitted to be included in [its] collection.” Indeed, the court noted, Shutterstock maintains a page on its website that explains why an image might be rejected “and provides advice for successful submissions.”

The record also contained evidence that Shutterstock’s reviewers “exercise some subjective discretion even when applying seemingly rote and straightforward criteria,” the court found. “For instance, when considering an image’s focus, Shutterstock reviewers are ‘trained to know the difference between something that’s just out of focus and something that’s more intentional.’” Moreover, according to Shutterstock, the court noted, a reviewer may still accept an image that has focus issues if it is “a really unique shot” or a “hard shot to get.” Together, the court noted, “these statements could lead a factfinder to conclude that Shutterstock’s reviewers exercise a considerable degree of case-by-case aesthetic or editorial judgment when determining which images to allow on the platform.” Shutterstock had therefore “not met its burden to establish that, as a matter of law, images appear on its platform ‘at the direction of a user’ as required,” the court concluded.

DMCA safe harbor—right and ability to control. Finally, the court noted, on the current record it was not possible to determine whether Shutterstock exerted the “right and ability to control” infringing content pursuant to 17 U.S.C. § 512(c)(1)(B)—another key test under the DMCA safe harbor. On this issue, too, the court concluded, the district court got it wrong.

Prior Second Circuit precedent makes clear, the court noted, that § 512(c)(1)(B) “appl[ies] in circumstances when the service provider has exercised ‘substantial influence’ over user activities.” Thus, much like the inquiry under § 512(c)(1), the court noted, “determining whether Shutterstock satisfies § 512(c)(1)(B) turns on the degree of influence that it exerts over the content that appears on its platform. Where a service provider’s control over user activities “is limited to promoting or demoting certain material within its platform, rather than deciding which material to allow on the platform at all,” the court noted, “its influence is much less substantial.” But that is to be distinguished, the court noted, “between service providers that review only a subset of user material from those that review every post that users seek to upload.” As with the analysis under § 512(c)(1), the court concluded, “the relevant inquiry here is whether the image pipeline Shutterstock has constructed—which begins with its lengthy guidelines for successful submissions and ends with manual image review—enables Shutterstock to exercise substantial control over the images that appear on its platform.”

Applying that doctrine to this case, the court found there was evidence in the record suggesting “intrusions into user autonomy over their posts that exceed the bounds set by Congress for the § 512(c) safe harbor.” As an initial matter, the court noted, Shutterstock screens every image before it appears on the platform—as screening that determines “whether an image ever gets on the platform.” Moreover, the court noted, “there is evidence here that Shutterstock’s image review goes beyond the limited purposes of restricting the site to selected categories of consumer preferences and excluding unlawful images.” Indeed, the court noted, rather than engaging in categorical content screening—like accepting only holiday-themed images, or images that feature animals—Shutterstock appeared to screen user images for their overall aesthetic quality. “Curating a collection of high-quality images is not the same as designing a website that would be appealing to users with particular interests,” the court noted.

What’s more, the court noted, there is some evidence in the record that Shutterstock extensively advised potential contributors on the types of images it is likely to accept. That conduct is unlikely to be found consistent within the safe harbor in other cases, the court stated. For example, the service provider in Capitol Records, LLC v. Vimeo, Inc., 125 F.4th 409 (2d Cir. 2025) “encouraged users to create certain types of content,” the court noted, “but did not condition their ability to post material on whether they created the provider’s preferred types of content.” Indeed, in the case, the court wrote, “we cited a website’s practice of giving its users extensive advice on content as one fact that can distinguish a service provider that has the right and ability to control infringing activity from one that does not.” Accordingly, on the current record, “a reasonable factfinder might conclude that the advice and instruction Shutterstock provides its contributors, coupled with its image screening process, are sufficiently coercive to constitute substantial influence.” A jury would ultimately have to decide.

The Case is No. 23-7652.

Judge: Pérez, M.

Attorneys: Scott Alan Burroughs (Doniger / Burroughs) for Elliot McGucken. Eleanor M. Lackman (Mitchell Silberberg & Knupp LLP) for Shutterstock, Inc.

Companies: Shutterstock, Inc.

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