Photographer Gets 2nd Chance in Shutterstock Copyright Fight

What happens when someone else’s copyrighted photos end up on a massive online image marketplace? That question is at the center of McGucken v. Shutterstock, a case that explores the limits of copyright law and the protections available to online platforms under the Digital Millennium Copyright Act (DMCA). The dispute began when landscape photographer Elliot McGucken discovered that 337 of his photographs had been uploaded to Shutterstock without his permission. Even worse, 165 of those images had been licensed to customers, earning Shutterstock about $2,100. McGucken argued that Shutterstock infringed his copyrights by allowing the images to be sold and further claimed that the company altered or removed his copyright management information (CMI), which is the information that identifies the creator and ownership of a copyrighted work.

The court rejected McGucken’s CMI claim because there was no evidence that Shutterstock intentionally removed his copyright information. Instead, Shutterstock explained that it automatically places its own watermark on every image uploaded to the platform for security reasons, such as preventing malware and protecting users’ personal information. Since copyright law requires proof that the company knowingly removed or altered CMI, the court found that McGucken had not met that burden. As a result, this part of the lawsuit was dismissed.

The bigger issue, however, involved the DMCA’s “safe harbor” provision. Safe harbor is designed to protect websites like Shutterstock from copyright liability when users upload infringing material, as long as the platform acts more like a neutral host than an active participant. Shutterstock argued that because users uploaded the images, it should be protected under the safe harbor provision.

On February 10, 2026, the Second Circuit reversed the lower court’s decision, in an important victory for plaintiff creators. The Second Circuit was not convinced that the answer was so simple. The judges pointed out that Shutterstock does much more than just store images. The company reviews submissions, screens them before they appear on the site, and decides which images meet its standards. The court explained that ‘if a service provider engages in manual, substantive, and discretionary review of user content… then its storage of infringing material is no longer ‘at the direction of a user.’” This means that if a platform actively makes editorial, aesthetic, or marketing decisions about content, it may lose the protection provided by the safe harbor. Furthermore, the court held: because the company provides contributors with instructions, reviews uploaded images, and decides what gets accepted, a jury could reasonably conclude that Shutterstock had the “right and ability to control” the infringing activity. However, that question still needs to be decided at trial; the court revived McGucken’s copyright infringement claims and sent the case back to the district court.

This case highlights an important challenge in modern copyright law. The DMCA was created to protect online service providers from being automatically liable for everything their users upload, but those protections are not unlimited. As platforms become more involved in reviewing, organizing, and promoting user content, courts are increasingly asking whether they are truly passive hosts or active participants. The outcome of this case could help define where that line is drawn and shape how online platforms handle copyrighted content in the future.