03 Aug, 2011 | Posted by: st

Court Holds

Removal of Photo Credit

-- a DMCA Violation

A major problem photographers encounter is how to proceed against an infringer who removes a photo credit from the photograph since such removal is not considered one of the elements of copyright infringement.

A recent court decision has now clarified this situation in favor of the photographer.

The decision in Peter Murphy v. Millennium Radio Group LLC; Craig Carton; Ray Rossi, on appeal to the United States Third Circuit Court of Appeals, reversed the New Jersey United States District Court in interpreting the key provision of the Digital Millennium Copyright Act.
In this case, Peter Murphy was hired by the magazine New Jersey Monthly (“NJM”) to take a photo of Craig Carton and Ray Rossi who, at the time, were the hosts of a radio show on WKXW, a radio station owned by Millennium.
NJM used the photo to illustrate an article in its “Best of New Jersey” issue, naming Carton and Rossi “best shock jocks” in New Jersey. The photo depicted them standing, apparently nude, behind a WKXW sign.

An employee of WKXW then scanned Murphy’s copyrighted image and posted the resulting electronic copy to the WKXW and another website.
The resulting scanned and posted image cut off part of the caption referring to the quote “Best of New Jersey” as well as eliminating NJM’s gutter credit (a credit placed in the inner margin or “gutter” of a magazine page ordinarily printed in a smaller type and running perpendicular to the relevant image on the page), which identified Murphy as the author of the image.
The WKXW website invited visitors to alter the image using photo manipulation software and to submit the resulting versions to WKXW, which resulted in the posting of 26 of these altered submissions.
After Murphy demanded that the alleged infringement cease, Carton and Rossi made him the subject of one of their shows at which time they, claimed Murphy, defamed him in a number of ways. This defamation claim was in addition to his copyright infringement claims.

The DMCA was passed in 1998 to, among other reasons, address the perceived need of copyright owners for legal sanctions to enforce various technological measures that have been adopted to prevent unauthorized reproduction of copyrighted works. The best known provision of the DMCA grants a cause of action to copyright owners for the circumvention of a technological measure that effectively controls access to a work.

One of the best known examples of this is where a movie studio encrypts a DVD so that it cannot be copied without consent and an individual uses his own software to crack the encryption, thereby resulting in the ability to make copies without permission. In such a situation, a separate cause of action now exists for such circumvention of the encryption.

Section 1202(c) of the DMCA includes in its definition of “copyright management information” the name of and other identifying information about the author of a work. As a result, Murphy contended that the NJM photo credit identifying him as the author of the image is copyright management information under the DMCA because it is “the name of the author” and was “conveyed in connection with copies of the image”.

The Third Circuit Court of Appeals analyzed the statute as a whole, reviewed other court decisions and reviewed the legislative history of the DMCA. The court held that a cause of action under Section 1202 of the DMCA potentially lies whenever the types of information listed in the statute and conveyed in connection with copies of a work is falsified or removed, regardless of the form in which that information is conveyed. In this case, the mere fact that Murphy’s name appeared in the printed gutter credit did not prevent it from qualifying as copyright management information. Accordingly, it was within the protection of Section 1202 and therefore Murphy could maintain this cause of action for violation of the DMCA.

This clarification, that removal of photo credit may constitute a violation of the DMCA, is welcome news to all copyright owners and especially to photographers who now have another arrow in their quiver to pursue copyright infringes.

© Joel L. Hecker, 2011

Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq[at]aol[dot]com .


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