Non-alphanumeric logo isn't CMI

CoStar Group, Inc. v. Commercial Real Estate Exchange Inc., No. CV 20-8819 CBM(ASx), 2021 WL 3566415 (C.D. Cal. Jun. 9, 2021)

CoStar owns a number of digital marketplaces containing listings of real estate for sale and for lease. Its LoopNet is allegedly “the leading digital marketplace for commercial real estate,” and contains CoStar’s copyrighted images, data from the CoStar database, and edits made by CoStar to “improve marketability.” Defendant CREXi is trying to build its own online commercial real estate marketplace and auction platform. It allegedly CREXi “harvest[ed] content, including broker directories, from CoStar’s subscription database without authorization by using passwords issued to other companies.” This opinion addresses only CoStar’s CMI claims.

The court agreed with CREXi’s argument that CoStar’s watermark wasn’t CMI. It didn’t include the copyright symbol (©) or any identifying information about the author of the work, such as a web address or company name. Its logo “can be described as five small light grey parts that form a circle.” (Interestingly, it doesn’t seem to use grey for its regular logo—perhaps black disappeared into too many photos.)

One version of CoStar logo (which is elsewhere usually accompanied by its name)

Although CoStar alleged that this identified its ownership of the image, that was a legal conclusion; the logo itself didn’t contain any identifying information about the author of the work as required by § 1202(c). McGucken v. DMI Holdings, CV 18-4837, 2019 U.S. Dist. LEXIS 60852 (C.D. Cal. Apr. 9, 2019), accepted “45SURF” superimposed onto a photo as CMI because “it identified plaintiff and his brand as the author and owner of the photographs”; he used that as his professional name. But CoStar’s logo “does not include the author’s name, title, an alphanumerical designation, or identifying symbols referring to such information.” See also Maule v. Anheuser Busch, LLC, No. 17-00461, 2018 U.S. Dist. LEXIS 125805 (E.D. Pa. July 27, 2018) (“Visit Philly Skyline Dot Com” superimposed on picture was not CMI: it “did not contain Maule’s name or any identifying information about him as the author of the photograph or owner of the copyright to that work ... nor does it inform the public that something is copyrighted [or] prevent infringement.”)