Shock Jocks Get Zapped – Digital Millennium Copyright Act Violated

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June 26  |  Newsletter  |   david

On June 14, 2011, in the case of Peter Murphy v. Millennium Radio Group, LLC, Craig Carton and Ray Rossi, the United States Court of Appeals for the Third Circuit handed down the first appellate decision construing certain key provisions of the Digital Millennium Copyright Act.

 In 2006, a professional photographer was hired by a magazine to take a photo of two radio shock jocks who the magazine had just designated as “best shock jocks” in New Jersey.  (That there is any value in shock jocks, let alone a purported “best,” is worthy of discussion; but not to the point here.)  The photo depicted the two shock jocks standing, apparently nude, behind a sign with the radio station’s call letters.  The photographer created the image and retained the copyright to it.

The magazine, which had the copyright owner’s permission to use the photograph, ran it in their “Best of New Jersey” issue, along with a notice crediting the photographer.  The photo credit appeared in the gutter of the magazine alongside the photograph.

So far so good.  The radio station and the shock jocks were getting the publicity they wanted.  But then things took a turn.  Soon the shock jocks found themselves on the receiving end and,  I’m guessing, things weren’t as funny that way around.

Without seeking permission from the photographer, an unknown employee of the radio station scanned the photographic image appearing in the magazine article and posted the scanned image to the radio station’s web site and also to

The photographer took exception and hired a lawyer, a move we always appreciate.  His lawyer sent a cease and desist letter.  The shock jocks responded by escalating the trash talk, allegedly stating that people should not do business with the photographer because he would probably sue his partners.  They also, apparently intending a derisive comment, allegedly implied that the photographer, who identifies himself as a married heterosexual and the natural father of children, was a homosexual.  The opinion does not indicate whether the Internet images were taken down in response to the demand, and does not address a separate provision of the DMCA whereby a take-down demand can be made to the Internet Service Provider of the offending sites.

The photographer proceeded to file suit in the United States District Court for the District of New Jersey for violation of the DMCA, copyright infringement, and state law defamation.  The District Court found for the defendants and dismissed all claims on summary judgment.

On appeal, the Third Circuit vacated the District Court’s summary judgment order on all counts.  The Court analyzed the defendant’s “fair use” assertion to the infringement claim and found that since all that was done was post the image, there was no fair use exception to infringement.  This was not a case, such as a news organization using an image in the context of news reporting or opinion, where the fair use exception might apply.

The case is significant, however, not for its analysis of fair use, but because of its statutory construction analysis of two key provisions of the DMCA.

The Digital Millennium Copyright Act was enacted by Congress in 1998 to make the laws of the United States consistent with two 1996 treaties of the World Intellectual Property Organization, to which the United States is a signatory.

The Court’s technical analysis of the DMCA is important to lawyers, but most likely not of much interest to others.  I’ll abbreviate.  It involved whether one provision of the DMCA limited the language of another section.

Section 1202 of the DMCA prohibits any person from altering or removing any “copyright management information,”  and also prohibits any person from distributing any work knowing that the copyright management information has been altered or removed.  Remember that the copyright notice in the magazine appeared in the gutter of the magazine alongside the image, rather than being part of the image itself and the radio station did not post the separate copyright notice that appeared in the magazine.  Remember also that we’re talking now about a violation of DMCA, not infringement.

The photographer argued that by not including the copyright notice that appeared in the magazine, the “copyright management information” of the image was thus altered, and by posting the image to the Internet the image was distributed knowing that the copyright management information was altered.  Thus, it argued, by the plain language of Section 1202, a violation of DMCA occurred.

The radio station attempted to limit the application of Section 1202 by the language of Section 1201.  Section 1201 provides that no person shall “circumvent a technological measure that effectively controls access to the work.”   The defendants’ argued  that this should limit the scope of the definition of “copyright management information” in Section 1201.  They argued that the chapter as a whole protects various kinds of automated systems which protect and manage copyrights.  Therefore, they argued, information like the name of the author of a work is not “copyright management information” unless it also functions as part of an automated copyright protection or management system.  Thus, to remove the printed credit appearing alongside the magazine photograph when it posted only the photograph to the Internet, would not violate Section 1202 because the credit was not part of an automated system.

The radio station did have support for that argument.  Federal trial courts have split on the issue.  However, in this first federal appeals court case dealing with the matter, this court didn’t buy the defendants’ argument.  The unanimous three-judge panel referred to the photographer’s argument as “straightforward.”

 In a detailed statutory construction analysis, the court found that Sections 1201 and 1202 address different issues, and that the radio station and the shock jocks violated the DMCA.

 It would be an interesting factual situation if, unlike this case, a defendant had in its possession the original digital photo, but instead of posting the original to the Internet instead posted a scanned copy.  What’s the difference?  A digital photograph can contain an embedded digital tag such as a copyright notice, that would be seen if the original image had been uploaded to the Internet.  It would not be seen in a scanned image which was uploaded.  We’ll leave that issue for another day.

Since this decision was by a three-judge appellate panel, the radio station and shock jocks could move to have the case reconsidered by all the judges.  My guess is that the shock jocks won’t have anything more to say.  It’s probably time to open the wallet wide and settle the case.

It does seem the court reached the right result, although the analysis needed to reach that conclusion doesn’t seem to me as straightforward as this panel considers it to be.  Look for this issue to live on in other circuits and perhaps one day reach the Supreme Court.

In perhaps a fitting ending to this case, by the time the case was argued on appeal the shock jocks were no longer together and were no longer employed by the radio station.  And it all seemed like so much fun at the time.

Copyright 2011, David G. Harrison.  All rights reserved.

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