Copyright: Some Very Recent Cases You Should Know About

by Reed Smith

Unless they were decided by the Supreme Court, contained major players, or were widely anticipated to begin with, most copyright cases do not get a lot of press. Here are six somewhat below-the-radar decisions from the past two months that will be of real consequence in the copyright world.

Murphy v. Millennium Radio Group, 2011 WL 2315128 (3d Cir. June 14, 2011): Copyright Management Information Includes Simple Non-Digital Copyright Credits

While the bundle of rights offered by copyright law includes a lot of things, it does not include the right to "credit." However, in Murphy, the Third Circuit found that the removal of a credit, digital or not, from any copyrighted work may be a violation of the Digital Millennium Copyright Act's ("DMCA") prohibition on tampering with "Copyright Management Information" ("CMI").

Here, plaintiff took a photo of two shock-jocks for a local magazine's "Best of" edition. The humorous photograph portrayed the two DJs, naked, with their private areas covered only by a sign proclaiming the name of their radio station-making this perhaps the one case where CMI could be confused with "TMI" (insert your own joke here). The radio station then used the photograph in a contest where its listeners altered the photo in other amusing ways. In administering the contest, the station also removed the photographer's name from the bottom of the photo.

The district court dismissed a copyright infringement claim based on fair-use grounds, and also dismissed the plaintiff's CMI claim. The Third Circuit reversed. While the fair-use reversal was interesting, it did not create new law. But, there have been few cases even mentioning CMI, and just about all of those at the district court level. Those courts that found no CMI violation reasoned that: (a) the removal of mere credits, especially non-digital credits, cannot be a violation of the DMCA because the DMCA was intended to safeguard technological measures used to protect copyrighted works; and, (b) finding a CMI violation for simple credit removal would go against the bar on copyright credit claims and potentially blur the lines of copyright and trademark.

The Third Circuit, however, held that the clear language of the DMCA (17 U.S.C. § 1202) had no such limitations in the actual definition of CMI, and so it could include any form of credit. Like MDY Indus., LLC v. Blizzard Entertainment, Inc., 2010 WL 5141269 (9th Cir. Dec. 14, 2010), in the Ninth Circuit, which interpreted the DMCA's "access" right, this may be a case where the court correctly read the literal interpretation of the DMCA, even if that interpretation might contrast with the original intent of the law. Such a finding may cast a wide net for potential DMCA violations, so look for a substantial rise in "removal of credit" claims going forward. However, note that a CMI violation is an additional claim, not a substitute for a copyright claim, since it still has to "induce, enable, facilitate, or conceal" an infringement.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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