Removing photo credit creates DMCA liability

Aaron Mackey | Libel | Feature | June 16, 2011

Individuals who physically remove credit lines attached to photographs violate a federal law that prevents people from stripping out copyright ownership information from works, the U.S. Court of Appeals in Philadelphia (3rd Cir.) ruled earlier this week.

The ruling, which could also apply to attribution information included in videos, newspaper clips and other copyrighted material, interpreted the anti-circumvention provisions of the Digital Millennium Copyright Act.

Media attorney Tom Cafferty, who represented the defendants in the case, said the ruling could harm free expression by creating an additional level of copyright liability for those who legitimately use others' works. But Mickey Osterreicher, an attorney who represents photographers, applauded the ruling for recognizing that people should credit images that they don’t own.

The case began when photographer Peter Murphy was hired to take a picture of New Jersey disc jockeys Craig Carton and Ray Rossi for New Jersey Monthly. After the photo was published in 2006, an employee at the radio station deleted the caption, which included the photographer’s credit while scanning the image into a computer.

The altered photo was then uploaded to the station’s website, where listeners were encouraged to download it, make alterations and upload their creations to the website.

When the photographer demanded the website remove the images, the DJs responded by implying that the photographer was a homosexual, according to the lawsuit. The DJs also attacked Murphy's business reputation.

Murphy sued the DJs and the owner of the radio station for violating the DMCA’s anti-circumvention provisions, copyright infringement and defamation. A trial court dismissed all of the claims.

On appeal, the Third Circuit ruled that the act of removing the photo caption that included the credit line for the photographer violated section 1202 of the DMCA, which prohibits altering information used to determine who owns an image’s copyright.

Courts disagree about whether the copyright law’s protections, known as copyright management information, extend to physical attributions. Some have ruled that the protection covered only electronic data embedded within an image or file that identified the copyright holder.

“In this case, the mere fact that Murphy’s name appeared in a printed gutter credit near the Image rather than as data . . . does not prevent it from qualifying” for the law’s protection, the court said.

Cafferty said the decision could create additional legal liability for journalists and other creators who use copyrighted material but do not attribute it.

“I think it creates a significant degree of uncertainty,” he said. “It has a serious potential chilling effect on free speech.”

Cafferty said he is still reviewing the decision and is considering asking the full appellate court to rehear the case.

Under traditional copyright law, individuals have limited rights to use copyrighted material owned by others without permission or attribution under a doctrine known as fair use. The doctrine recognizes the tension between copyright ownership and the First Amendment.

Such uses generally include speech that is non-commercial, satirical or newsworthy.

But the fair use defense would not apply to the digital copyright law’s anti-circumvention provisions, Cafferty said.

For example, a documentary may make a fair use of a copyrighted image, but omit the credit. Under the ruling announced by the appellate court, the documentary could still be liable.

“You may have a fair use, but still have a DMCA violation,” Cafferty said.

But Osterreicher, general counsel for The National Press Photographers Association, said that the ruling helps photojournalists, who often have little control over where their images end up online and whether they receive credit for their work.

“It gives credit where credit is due,” Osterreicher said of the decision.

Because people often strip out photojournalists’ credit from images, the decision helps photographers get paid for their work, Osterreicher said.

The appellate court also reversed the trial court’s findings related to the copyright infringement and defamation claims.

The court ruled that the radio station's posting of Murphy’s images to the website did not constitute a fair use, finding that the factors used to determine whether the use was fair weighed against the defendants.

The court also said that the trial court improperly dismissed the defamation claim before the plaintiff had been able to gather evidence to help prove his claim.