Online only

Pic credits protected (in 3 US states)

THE APPEAL court of the US Third Circuit has ruled that picture credits are protected under the country's Digital Millennium Copyright Act. Technically, the judgement sets a precedent only in the states of Delaware, New Jersey and Pennsylvania - but with luck it'll have wider implications.

In 2006, Peter Murphy was hired by the magazine New Jersey Monthly to take a photo of Craig Carton and Ray Rossi, who at the time were the hosts of a show on the New Jersey radio station WKXW, which is owned by Millennium Radio Group. They have been described as "shock jocks"

Someone at the radio station scanned the picture, without either its caption or Peter Murphy's credit (which was down at the edge of the bottom of the column of type), and posted it online with an inviation for viewers to manipulate it.

Murphy demanded the alleged infringement of his copyright cease.

Then it got (inevitably) messy. As the judgement records it:

Carton and Rossi made Murphy the subject of one of their shows, allegedly stating that one should not do business with him because he would sue his business partners. They also allegedly implied that Murphy, who identifies himself as a married heterosexual and the natural father of children, was a homosexual.

In April 2008, Murphy sued the Station Defendants for violations of §1202 of the 1988 Digital Millennium Copyright Act, which inserted into the Copyright Act a prohibition on "removal or alteration of copyright management information"; and also straightforward copyright infringement; and defamation under New Jersey law. A District Court granted summary judgement in favour of Millennium on all counts.

The Federal Court of Appeals for the Third Circuit, sitting in Philadelphia, on 14 June overturned the lower court decision. Its 30-page judgement places particular emphasis on rejecting Millennium's lawyers' argument that "copyright management information" actually means "electronic copyright management information" or alternatively "automatic copyright management information".

That is, in plain English: removing any byline or credit is illegal (within the Court's jurisdiction).

Other US courts have, however, found otherwise - for example a District Court in California (in the Ninth Circuit), found in the wonderfully-named case Textile secrets international v. Ya-ya brand inc. (2007) that what is protected is "electronic copyright management information". More will have to be spent on lawyers, not least by Murphy when he actually pleads his case, to establish what US law actually is.

The Appeal Court in Philadelphia also rejected Millennium's argument that its copying of the photo was "fair use"; by the bye reinstated his claim for defamation; and generally slapped the District Court around a bit. Its judgement will make an entertaining citation in those future cases.

Last modified: 17 Jun 2011 - © 2011 contributors
The Freelance editor is elected by London Freelance Branch and responsibility for content lies solely with the editor of the time
Send comments to the editor: editor@londonfreelance.org