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Photographer loses photo alteration case

By Rebecca Tushnet

Murphy v. Millennium Radio Group LLC, No. 08-1743 (D.N.J. 3/31/2010)

Peter Murphy, a photographer, sued Millennium (MRG), which owns radio station WKXW 101.5, and two of its shock jocks, Craig Carton and Ray Rossi. In March 2006, New Jersey Monthly magazine published a feature, ?Best of New Jersey,? naming Carton and Rossi as the best shock jocks in New Jersey that year. Murphy?s photo of them appeared in the print edition; he worked as an independent contractor. The photo showed them semi-nude while holding a WKXW logo in front of themselves.

WKXW scanned a copy and posted the image, which also showed up on myspacetv.com (though it?s not clear to me whether WKXW controlled the MySpace site, or whether it?s an unofficial fan page). There was no copyright notice on the pages of the New Jersey Monthly on which the photo was printed, and no watermark embedded into the photo. A credit for Murphy, along with other photographers, appeared in the gutter of the printed page.

Soon after the photo appeared on WKXW?s site, visitors began sending in their own versions of the photo. One such altered image had Carton and Rossi in bikini tops and displayed the phrase ?2007 Jersey Girls Calendar? in place of the station?s logo on the sign held by the pair. Some images contained ?significant alterations? while others ?reflected only minor changes.? The radio station encouraged visitors to create these images with the invitation, ?Send in your Photoshopped alterations of The Jersey Guys NJ Monthly photo? on the station?s website. The station displayed the altered photos on its site.

Sometime around June, Murphy?s attorney sent a threat letter, after which WKXW removed the photo and all the altered versions. Murphy alleged that sometime thereafter, Carton and Rossi used their show to impugn his personal integrity, characterizing him as ??a man not to be trusted? in a business environment; a man who ?will sue you? if you have business dealings with him and, in substance, as a man with whom ?a person[] should avoid doing business.?? In addition, Murphy alleged that Carton and Rossi implied he was gay. (Okay, the complaint says ?inferred Plaintiff was a homosexual,? but I?m fixing it.)

Murphy sued for copyright infringement, vicarious and contributory infringement, violation of the DMCA?s CMI provisions, and defamation. The district court granted summary judgment on all claims.

First, on the DMCA §1202 claim, the court found that defendants hadn?t removed ?copyright management information,? here the fine print gutter credit on the magazine page. The information here didn?t function as a component of an automated copyright protection or management system, and thus wasn?t within the scope of the law. An alternate interpretation would make virtually all garden-variety copyright infringement claims into DMCA claims, supplanting the original Copyright Act.

The court also held that both the unaltered and altered photos on the site constituted fair use. First, the initial use of the unaltered photograph had a different purpose than the original use: it was designed to inform visitors to the station?s website of the New Jersey Monthly feature, with text below it stating, ?Craig and Ray bare it all for New Jersey Monthly.? (The court did not specify the initial purpose of the photo, which was presumably something like ?identifying Carton and Rossi for New Jersey Monthly?s readers.?) The altered photos were transformative because they added something new and changed the character and message of the original, using the photo for comic effect or poking fun at the photographer?s chosen pose. ?Although some may view the altered photographs and feel that the comedic efforts on the part of some may not have been particularly successful, this does not effect the fair use analysis.? Transformation doesn?t require achieving one?s intended purpose. And, to the extent that the use was commercial, that was outweighed by the transformative nature of the use.

Given transformativeness, the nature of the work factor was of little aid, and was neutral. Likewise, the reasonableness of the amount taken depends on the weight of factors one and four. Beause those factors weighed in favor of fair use, this factor was of ?little help? to Murphy.

Finally, defendants also did well on factor four. The only economic impact Murphy identified is that he would ?likely? have offered a license for the use had defendants asked. But courts have rejected this argument because, stated that way, it would always favor the copyright owner. This was fair use.

Comment: Murphy may have been harmed here by going after the visitor-submitted photos. (Especially contributory/vicarious infringement, which would require the court to conclude that visitors? very creation of the altered photos was not fair use.) If he?d only asked for damages based on the unaltered photo, the fair use argument might have been harder?certainly there might have been less bleedthrough on transformativeness in the factor three analysis, and the circularity problem on factor four would have been less troubling, since there?s a more robust established market for pure reproductions than for alterations.

The defamation claims failed because the alleged statements were rhetorical hyperbole: mere insults and name-calling that were not verifiable. The context?during a shock jock radio show in which Rossi and Carton typically delivered provocative and caustic dialogue?was underscored by the very photo in suit. Murphy ?attempted to portray the show?s controversial and humorous character by having the two shock jocks pose seemingly nude behind their radio station?s logo.? Given this context, there were no actionable factual statements.

Moreover, even if the court had found that the statements were not rhetorical hyperbole, it is no longer defamatory to suggest that someone is homosexual. Though there?s a New Jersey appellate division case from 2001 holding that a false accusation of homosexuality is reasonably susceptible to a defamatory meaning, the New Jersey Supreme Court in 2006 held that the equal protection clause of the New Jersey Constitution requires committed same-sex couples to be allowed access to the same rights and benefits as married heterosexuals. The court detailed developing public policy against discrimination against gays and lesbians, noting that ?[t]imes and attitudes have changed.? Subsequently, the state created civil unions. Thus, the court ruled, it was unlikely that New Jersey would ?legitimize discrimination against gays and lesbians by concluding that referring to someone as homosexual ?tends so to harm the reputation of that person as to lower him in the estimation of the community as to deter third person from associating or dealing with him,?? as required for defamation.

Full post as published by 43(B)log on April 21, 2010 (boomark / email).