Removal of a Photographer’s Credit From Digital Photograph May Violate the DMCA

The development of digital technology has revolutionized the way artists create and distribute their work.  Although simplifying and streamlining the creative process, the digital age has created a myriad of legal issues that the courts must now address on a daily basis.  One such issue involves the protection of copyright information embedded in or around a digital work.  The Third Circuit Court of Appeals recently addressed this issue, finding the removal of such information a violation of Section 1202 of the Digital Millennium Copyright Act of 1998 (“DMCA”). 

Congress passed the DMCA in 1998, in part, to expand the scope of copyright protection for works created, stored and distributed via non-traditional electronic means.  Section 1202 of the DMCA prevents an individual from intentionally removing identifying copyright information, such as the name of the author of a work in digital form, without permission from the copyright owner.  More specifically, under Section 1202(b), it is unlawful for any person to remove or alter “copyright management information” (“CMI”) without permission of the copyright owner or to distribute a copyrighted work with knowledge that the CMI has been removed or altered.  Section 1202(c) defines CMI as information conveyed in connection with copies or displays of a copyrighted work such as the title of the work or the name of the artist.

In Murphy v. Millennium Radio Group LLC, 2011 WL 2315128 (3d Cir. June 14, 2011), the Third Circuit rejected a rather creative interpretation of Section 1202 that would have limited its application to information embedded in a work as part of an “automated copyright protection or management system.”  Instead, the Court found the statute to be “extremely broad, with no restriction on the context in which such information must be used.”

New Jersey Monthly Magazine (“NJM”) hired Peter Murphy, an independent photographer, to photograph two local radio hosts for its annual “Best of New Jersey” issue.  The published photograph depicted the radio hosts posing nude behind a sign displaying the station’s call numbers.  A station employee scanned the image and posted it on the station’s website.  In doing so, the employee removed the “gutter credit” identifying Murphy as the author of the photograph.  Later, the radio station held a contest in which visitors to the website could submit altered versions of the photograph for display on the website.  After the station ignored Murphy’s requests to remove the photograph, Murphy sued the radio station for violating Section 1202. 

The District Court of New Jersey rejected Murphy’s position that the gutter credit was protectable CMI.  The court relied on its holding in IQ Group, Ltd. v. Wiesner Publishing, LLC, 409 F. Supp. 2d 587 (D.N.J. 2006), where it found that “[t]o come within § 1202, the information removed must function as a component of an automated copyright protection or management system.”  According to this interpretation, the information embedded in Murphy’s photograph was “simply a photography credit in the gutter or a print magazine” rather than a “component of an automated copyright protection or management system.”  The Court reasoned that the DMCA “should not be construed to cover copyright management performed by people, . . . it should be construed to protect copyright management performed by the technological measures of automated systems.”  To hold otherwise, the court concluded, would convert “virtually all garden-variety copyright infringement claims . . . to DMCA claims, supplanting the original Copyright Act.” 

The Third Circuit reversed, finding “nothing in § 1202 . . . [that] restricts the meaning of CMI in § 1202 to information contained in ‘automated copyright protection or management systems.’”  Instead, the court interpreted the provision as “extremely broad, with no restriction on the context in which such information must be used in order to qualify as CMI.”  The court was unwilling to “rewrite § 1202 to insert a term – that is, ‘automated copyright protection or management system’ – which appears nowhere in the text of the DMCA and which lacks a clear definition.”  Although the court recognized some ambiguity in the legislative history of the DMCA, it was unable to find the “extraordinary showing of contrary intentions” that would compel the court to “disregard the plain language of the statute.” 

More generally, the court concluded that “a cause of action under § 1202 of the DMCA potentially lies whenever the types of information listed in [Section 1202] 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.”  Applying this interpretation, the court held that “the mere fact that Murphy’s name appeared in a printed gutter credit near the Image rather than as data in an ‘automated copyright protection or management system’ does not prevent it from qualifying as CMI or remove it from the protection of § 1202.” 

Murphy is the first reported appellate decision considering whether CMI should be restricted to data embedded in an “automated copyright protection or management system.”  As digital technology continues to develop, so will the need to revisit the various statutory protections afforded to authors who create and disseminate their work through digital (and other electronic) mediums.  It appears, however, that so long as the present statutory regime remains in effect, the Third Circuit will interpret the language of DMCA and other intellectual property statutes in a manner that will provide maximum protection to artists whose names and other identifying information have been removed from their digital works.