Third Circuit Issues Important DMCA and Fair Use Ruling

The Third Circuit issued important rulings on the issues of DMCA  Section 1202 copyright management information and fair use on June 14, in the appeal of Murphy v. Millenium Radio Group LLC, reversing the district court’s summary judgment in favor of the defendants on both defenses.  In Murphy, the plaintiff was a photographer who was hired by a local magazine to take a cover photo of two radio show hosts, Carton and Rossi.  In that issue, the two hosts were given the dubious honor of being named the “best shock jocks” in New Jersey.  Plaintiff Murphy retained copyright ownership of the cover photo.

An unknown employee of Carton and Rossi’s radio station scanned and cropped the cover photo in a way that removed Murphy’s photo credit, and placed the copy on various websites, including the station’s website, inviting the public to make digital alterations to the photos and submit the new versions to the station.  A number of fans submitted altered version of the photo and the radio station displayed 26 of the submissions on the station’s website.

Murphy sued the radio station, as well as Carton and Rossi, on two claims.  First, he argued that by cropping the photograph in a way that stripped out his credit the defendants had intentionally removed copyright management information, in violation of Section 1202 of the DMCA.  The second claim was for copyright infringement.  The district court granted summary judgment to defendants on both claims, holding as a matter of law that removal of the photo credit did not constitute intentional removal of copyright management information and that the defendants’ use of the photograph was fair use.  Murphy appealed.

With respect to the DMCA claim, the Third Circuit rejected the defendants’ argument that the statutory definition of copyright management information should  be limited to automated or electronic information.  The court noted a split among district courts to consider the question and a lack of any appellate decisions on point, but relied upon what it characterized as the plain language of the definition.  That definition of copyright management information expressly includes the name of the author of a work when it has been “conveyed in connection with copies of [the] work.”  Having found the plain language of the statute to cover removal of a photo credit, the court went on to examine the purpose and legislative history of the DMCA and found no “extraordinary showing of contrary intentions” sufficient to outweigh the plain meaning of the statue.  On these grounds, the Third Circuit reversed the district court’s summary judgment in favor of defendants on the DMCA claim.

With respect to the fair use defense, as is so often the case, the Third Circuit’s analysis hinged on its determination that the use was not transformative.  The court noted that in this case, the photograph was being used for the same purpose as the original, to depict Carton and Rossi, and was not being used to comment on or criticize the photograph itself.  At most, the use was meant to comment on Carton and Rossi’s award, but such commentary did not in any way transform the authorship of the photograph.  Having found the use non-transformative, the court easily disposed of the remaining factors.  With respect to market harm, the court determined that because Murphy was a professional photographer and had engaged in licensing of his work, allowing others to use his photographs without payment would have a substantial adverse impact on the market for such licenses.  Turning to the nature of the work and the amount copied, the Third Circuit held that the photograph was more expressive than factual, and the photograph was copied in its entirety (although it is not clear how this finding is consistent with the court’s earlier statement that the image had been cropped).  With all four factors favoring Murphy, the court reversed the district court’s summary judgment on fair use and remanded the case for further proceedings on both the copyright and DMCA claims.

It seems like over the past several years, fair use decisions have been ever-expanding the scope of transformative use.  In some instances, the distinction between a use that comments on the plaintiff’s work  and a use that comments on something other than the plaintiff’s work has been eviscerated, rendering any use different in kind from the original (most licensed uses would fall into this category) a fair use.  This decision may be a moderating step back from the brink in that regard.  Here is the decision: