Unauthorized Removal of Copyright Ownership Information from Photograph May Violate Digital Millennium Copyright Act

The unauthorized removal from a photograph of information crediting the photographer and copyright owner may violate a provision of the Digital Millennium Copyright Act (“DMCA”) that prohibits the falsification, alteration, or removal of copyright management information. The U.S. Court of Appeals for the Third Circuit reached this conclusion in Murphy v. Millennium Radio Group LLC, No. 10-2163 (3d Cir. June 14, 2010).

In Murphy, the magazine New Jersey Monthly hired Peter Murphy, a photographer, to photograph two radio show hosts. The magazine published the photograph, in which the disk jockeys appeared to be nude, in its “Best of New Jersey” issue. Later, an employee of the radio station where the radio hosts worked scanned the photograph from a copy of the magazine and uploaded the image to the station’s website. Before posting the image, the station employee removed the “gutter credit”—a credit placed alongside the photo, which identified Murphy as the author of the image. No one obtained Murphy’s permission to reproduce, alter, or post the image.

Murphy sued the station and the disk jockeys. Among other things, he alleged that they were liable for violating Section 1202 of the Digital Millennium Copyright Act of 1998 (“DMCA”) and for copyright infringement. The U.S. District Court for the District of New Jersey granted summary judgment to the defendants. Murphy appealed to the Third Circuit.

The Third Circuit reversed. The court explained that the DMCA is best known for adding Section 1201 to the Copyright Act. Section 1201 provides that a person is liable for unauthorized “circumvent[ion of] a technological measure that effectively controls access to a work” protected by copyright 17 U.S.C. § 1201(a)(1)(A). Murphy’s DMCA claim invoked a different provision of the Act–Section 1202–which imposes both civil liability and criminal responsibility on persons who falsify, alter, or remove “copyright management information” (“CMI”). 17 U.S.C. § 1202. The Act defines CMI to include certain types of “information conveyed in connection with copies . . . of a work . . ., including in digital form, . . . : (2) [t]he name of, and other identifying information about, the author of a work . . . .” 17 U.S.C. § 1202(c).

The defendants argued that the DMCA as a whole protects various kinds of automated systems used protect and manage copyrights, and thus the removal of a printed credit from a magazine photograph that was later posted to a website does not violate § 1202, because the credit was not part of an automated copyright protection or management system. They also pointed out that the DMCA was intended by Congress to implement in the United States the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Those treaties protect “electronic rights management information,” which is defined as “information [that] will likely be included in digital versions of a work . . . to inform the user about the authorship and ownership of a work.” According to the defendants, the term CMI in the DMCA should be interpreted to have the same meaning as “electronic rights management information” in the WIPO treaties—an interpretation that the defendants argued would preclude liability for removing copyright information from non-digital works.

The Third Circuit rejected the defendants’ arguments. It pointed out that the text of the DMCA does not explicitly impose a requirement that “copyright management information be part of an “automated copyright protection or management system” in order for its removal to constitute a violation of the Act. Moreover, although the definition in the WIPO treaties refers to digital versions of a work, the court held that that definition does “not require that ‘electronic rights management information’ be embedded in such systems. In addition, neither the WIPO treaties nor the DMCA indicate the precise relationship between the concepts of CMI and ‘electronic rights management information’ as discussed in the treaties.” The Third Circuit opined that “Congress was certainly free, in implementing the WIPO treaties, to define ‘copyright management information’ more broadly than ‘electronic rights management information.'”

The court concluded that —

CMI, as defined in § 1202(c), is not restricted to the context of ‘automated copyright protection or management systems.’ Rather, a cause of action under § 1202 of the DMCA potentially lies whenever the types of information listed in § 1202(c)(1)-(8) and ‘conveyed in connection with copies . . . of a work . . . including in digital form’ is falsified or removed, regardless of the form in which that information is conveyed.

Accordingly, the Third Circuit reversed the district court and remanded Murphy’s DMCA claim for further proceedings. The court also reversed the district court’s dismissal of Murphy’s copyright infringement claim, finding that the district court erred in holding as a matter of law that the defendants had established the fair use defense.

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