How Two Nude Radio DJs Could Impact Copyright Law

Copyright lawsuits are flourishing these days. But how about a pair of New Jersey shock jocks who appropriated a photographer's image of them, challenged their radio audience to manipulate the image, and then implied the photographer was a homosexual after he complained?

The Third Circuit Court of Appeals has just addressed this case in a precedential decision that involves such issues as the Digital Millenium Copyright Act and fair use.

In 2006, New Jersey Monthly magazine hired photographer Peter Murphy to shoot WKXW hosts Craig Carton and Ray Rossi for a "Best of New Jersey" issue naming the pair as "best shock jocks" in the state. The two radio hosts were photographed standing, apparently nude, behind a WKXW sign.

Later, after the magazine had come out, the WKXW website took a scanned copy of the photograph and put it on its website, inviting its fans to take the image, manipulate it, and submit the results. The station stripped away NJM's caption and Murphy's photo credit and never got permission to use the copyrighted photograph.

After Murphy's lawyer sent the station a warning letter, Carton and Rossi made Murphy the subject of a show, implying he was a homosexual, even though he was married with children.

Murphy sued for copyright infringement and defamation. A district court tossed the lawsuit on summary judgment.

On Tuesday, the Third Circuit revived the lawsuit, examining important copyright issues in the digital age.

One of those issues is something that has not been addressed at the appellate level anywhere in the country --  whether the removal of a credit in a copyrighted photo rises to a violation of Section 1201 of the DMCA. That section makes it a crime to circumvent copyright protection schemes. Typically, this has meant that if a Hollywood studio installs software on a DVD so that consumers can't copy it, a hacker can't fool around with such software. But the Third Circuit wants to know whether a credit that appears in the gutters of a copyrighted photo is also intended to prevent unlicensed dissemination.

In its decision, the panel of justices agree that  the copyright prevention device doesn't have to be an automated system (like DRM software) and that the DMCA should be read broadly to prohibit the manipulation of any copyright management information, including the identification of an author of a work.

The Third Circuit justices also take a look at whether the case should have been dismissed as a transformative fair use. 

The defendants in this case maintained the image was used to illustrate an article informing the public about Carton and Rossi and then used by the station to report to their viewers the "newsworthy" fact of the magazine's award. WKXW says the purpose of their use was "news reporting" and thus had an exemption to Murphy's copyright.

But the Third Circuit finds that the station didn't showcase any broader news coverage or make any editorial commentary, but merely used the photo for a similar purpose that the magazine had used it. The Third Circuit also dismisses any argument that such use was a parody.

Here's the full decision in the case.

E-mail: eriqgardner@yahoo.com

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