Murphy v. Millennium Radio Group LLC

In an action for copyright infringement and violation of the Digital Millennium Copyright Act (DMCA), the Third Circuit reverses the district court’s grant of summary judgment in favor of defendant radio station, finding that the station’s removal of a gutter credit from the photograph may be considered removal of “copyright management information” for purposes of the DMCA, and that the station's reproduction of the photograph was not protected as fair use.

Plaintiff Peter Murphy was hired by a magazine to take a photograph of two New Jersey radio shock jocks, Craig Carton and Ray Rossi, of the New Jersey radio station WKXW, owned by defendant Millennium Radio Group LLC. The photograph depicted Carton and Rossi behind a WKXW sign, apparently nude, and was used in a New Jersey publication highlighting the “Best of New Jersey.” As it appeared in the magazine, the image contained a “gutter credit” along the side of the image crediting Murphy as the photographer.

A Millennium employee later scanned the photograph from the magazine and posted it to the WKXW website and to a second website, myspacetv.com. The gutter credit was removed from the image posted to the website and the caption referring to the “Best of New Jersey” award was omitted. The website invited visitors to alter the image digitally and to submit their versions of the photograph to WKXW. The radio station received numerous submissions and 26 of the altered photographs were posted on the station’s website.

Murphy sued defendants for, among other things, violations of the Digital Millennium Copyright Act (DMCA) and copyright infringement under the Copyright Act. The district court granted defendant’s motion for summary judgment, but the Third Circuit reversed, finding that the station’s removal of a gutter credit from the photograph may be considered removal of “copyright management information” for purposes of the DMCA, and that the station's reproduction of the photograph was not protected as fair use.

The most well-known provision of the DMCA, § 1201, provides a cause of action for copyright owners against others who “circumvent a technological measure that effectively controls access to a work.” In addition, § 1202 of the DMCA, which deals with “copyright management information” (CMI), provides, in part, a cause of action for the removal or alteration of CMI without the authority of the copyright owner, defining CMI as certain types of “information conveyed in connection with copies . . . of a work . . ., including in digital form,” including “[t]he name of, and other identifying information about, the author of a work.” Murphy claimed that, by removing the “gutter credit,” from its reproduction of the photograph, Millennium had knowingly removed copyright management information from its reproduction of the photograph in violation of the DMCA.

Millennium moved to dismiss Murphy’s DMCA claim on the grounds that by removing the gutter credit it did not remove the type of automated copyright protection or management system that Congress intended to be considered CMI. The district court granted summary judgment for the radio station, finding that the legislative history was consistent with Millennium’s reading of the DMCA. The Third Circuit, however, found that nothing in the DMCA requires that CMI be digital or electronic. Accordingly, the Third Circuit reversed the lower court’s grant of summary judgment in the station’s favor on Murphy’s DMCA claim.

Millennium also moved to dismiss Murphy’s copyright infringement claim, claiming that the reproduction of the photograph was protected as fair use. The lower court found that the radio station’s use of the image was sufficiently “transformative” – in that it added new purpose, character, meaning, or message to the image – and constituted fair use. Again, the Third Circuit disagreed. In order for the work to be transformative, it must modify an element of or at least comment on the author’s work. Although the station used the image to report a news story involving Carton and Rossi, it did not add any meaning or purpose to the image. The other “fair use factors” also favored Murphy, in that the radio station used Murphy’s work in its entirety, for commercial purposes, and in a way that impacted the market for Murphy’s work. Because WKXW’s use of Murphy’s image was not protected as a fair use, the Third Circuit reversed the lower court’s grant of summary judgment in defendant's favor.