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Removal of Printed Photo Credit Qualifies as DMCA Violation, Court Says

by David Walker


©Peter Murphy
The radio station that employed these two "shock jocks" scanned this image from a magazine and posted it on their web site without permission, and without the photo credit that appeared in the magazine.

A federal appeals court in Philadelphia has reinstated a photographer's copyright lawsuit against a New Jersey radio station owner, after finding that a lower court came to the wrong decision on every issue in the case.

Most significantly, the appeals court said that a photo credit printed in the gutter of a magazine qualifies as copyright management information (CMI) under the Digital Millenium Copyright Act (DMCA). The DMCA prohibits the unauthorized removal of encryption technology or copyright management information from copyrighted works.

Photographer Peter Murphy was hired in 2006 by New Jersey Monthly magazine to photographer New Jersey radio station WKXW personalities Craig Carton and Ray Rossi. The magazine used the photo to illustrate an article naming the two men the "best shock jocks" in the state for its "Best of New Jersey" issue. The image ran with a gutter credit for Murphy. After the image appeared in the magazine, someone at WKXW scanned it without permission and posted it on the WKXW web site without Murphy's credit. The station invited its web audience to manipulate the image, and it eventually posted 26 manipulated version of the photo on its site.

Through a lawyer, Murphy ordered the station to remove his copyrighted image from the web site. Carton and Rossi responded on air by making fun of Murphy, allegedly telling listeners not to do business with him because he would sue his business partners. Carton and Rossi also allegedly suggested Murphy was gay. Murphy ended up suing Carton, Rossi, and WKXW's owners (Millenium Radio Group) for infringement, removal of copyright management information in violation of the DMCA, and defamation.

The radio station filed a motion for summary dismissal of all the charges. WKXW argued that its unauthorized use of Murphy's photo was fair use. It argued that it had not violated the DMCA because the gutter credit was not part of digital copyright management and protection system covered by the DMCA. Finally, WKXW sought dismissal of the defamation claim on the grounds that Murphy lacked evidence to support the claim.

The lower court agreed with WKXW's arguments, and dismissed all of Murphy's  claims in March 2010.

On appeal, however, Murphy's lawyers argued that removal of the gutter credit was a violation of the DMCA, because gutter credits fall under the DMCA definition of copyright management information. The United State Court of Appeals for the Third Circuit agreed, citing the DMCA's definition of CMI: "information conveyed in connection with copies...of a work....including....the name of, and other identifying information about, the author of a work."

The court rejected WKXW's argument that a gutter credit from a magazine is not CMI under the DMCA definition because it is not part of "an automatic copyright protection system." WKXW's argument was based on a much narrower (and somewhat tortured) reading of the law and its definition of CMI. But the appeals court said CMI "is not restricted to the content of automated copyright protection or management systems.

"In this case, the mere fact that Murphy's name appeared in a printed gutter credit near the Image rather than as data in an 'automated copyright protection or management system' does not prevent it from qualifying as CMI," the appeals court said in its ruling for Murphy.

The appeals court then turned to the lower court's fair use ruling, and found that the lower court was simply wrong when it found that WKXW's use of the image was transformative, and that it didn't harm the market for Rossi's image. The appeals court explained that by posting the image without any broader commentary, the station undercut its argument that it gave any new meaning to the image that might have qualified the use as fair.

"Instead, it appears that [WKXW] did not want to go to the trouble of creating their own eye-catching photo of Carton and Rossi to illustrate their announcement of the New Jersey Monthly award, but simply appropriated the image for the same purpose. This is far from transformative," the judges said in their decision.

With regard to the defamation claim, the appeals court re-instated that on the grounds that the lower court didn't give Murphy sufficient opportunity to gather supporting evidence through a discovery process.

Murphy says of the decision, "Im real happy with it. it's exactly what it should have been I'm looking forward to getting this thing to trial."

Peter Murphy v. Millenium Radio Group LLC, Craig Carton, Ray Rossi, United States Court of Appeals for the Third Circuit, No. 10-2163

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