DMCA and Copyright Management Information

Paul Murphy was hired to take a photograph of Craig Carton and Ray Rossi, two hosts of a popular radio show in New Jersey. The photo depicted the DJs naked behind a radio call-letter sign. Murphy retained the copyright to the photograph. An employee of the radio station scanned Murphy's image from a magazine article and posted it to the station's website, and to another website, myspacetv.com. The scan cropped off the magazine's title tag and Murphy's gutter credit. The station's site invited visitors to alter the image and submit their edits to the station. The station posted 26 edits, though it never received Murphy's permission to republish the image.

Murphy found out about this and demanded that the infringement cease. The DJs got on the air and suggested that no one should do business with him because he was untrustworthy. They also implied that he was a homosexual, which wasn't true. Murphy sued.

DCMA Claim

Murphy argued that, by reproducing the image on two websites without the gutter credit, the station violated the Digital Millennium Copyright Act. The court recognized the most well-known provision of the DMCA, section 1201, which grants a cause of action to copyright owners for the "circumvent[ion of] a technological measure that effectively controls access to a work," but said that Murphy's claim involved the lesser known section 1202. That section deals with "copyright management information" or CMI. According to Murphy, by posting the image on two websites without the gutter credit which was in the magazine, the station "remove[d] or alter[ed]" the copyright management information and "distribute[d]" a work knowing its CMI had been removed or altered in violation of the act.

The court agreed, holding that the plain language of the act protected against the knowing removal of the CMI, here the gutter credit.

What is helpful for photographers is the court's statutory construction to the section. It held that the section isn't restricted to the context of "automated copyright protection or management systems," as the station had argued. Rather, a cause of action potentially lies whenever the types of information listed under the section and "conveyed in connection with copies…of a work…including the digital form" is falsified or removed, regardless of the form in which the information is conveyed. The information includes

  • The title and other information identifying the work, including the information set forth on a notice of copyright.
  • The name of, and other identifying information about, the author of a work.
  • The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.
  • With the exception of public performances of works by radio and television broadcast stations, the name of, and other identifying information about, a performer whose performance is fixed in a work other than an audiovisual work.
  • With the exception of public performances of works by radio and television broadcast stations, in the case of an audiovisual work, the name of, and other identifying information about, a writer, performer, or director who is credited in the audiovisual work.
  • Terms and conditions for use of the work.
  • Identifying numbers or symbols referring to such information or links to such information.
  • Such other information as the Register of Copyrights may prescribe by regulation, except that the Register of Copyrights may not require the provision of any information concerning the user of a copyrighted work.

17 U.S.C. § 1202(c).

A copy of the opinion may be had here: Murphy v. Millennium Radio Group.