By Dick Goehler, Frost Brown Todd, LLC
On March 31, 2010, Judge Joel Pisano of the United States District Court for the District of New Jersey granted summary judgment in a copyright infringement and defamation case brought by Peter Murphy against Millennium Radio Group, its radio station WKXW 101.5, and two of its talk show hosts, Craig Carton and Ray Rossi.
The key facts in the case as described in the Court’s opinion were as follows. Carton and Rossi worked as “shock jock” radio hosts for WKXW. In March of 2006, New Jersey Monthly magazine published a feature entitled, “Best of New Jersey,” naming Carton and Rossi as the best shock jocks of New Jersey for that year. A photograph of Carton and Rossi taken by Peter Murphy appeared in the print edition of the magazine. At the time, Murphy was working as an independent contractor for New Jersey Monthly.
The subject photograph showed Carton and Rossi appearing semi-nude while holding a WKXW radio station logo across their midsections. WKXW made a copy of the photo by scanning the print copy of the March 2006 edition of New Jersey Monthly and then posted the image on the radio station’s website. No copyright notice appeared on either of two pages of New Jersey Monthly on which the photo was printed. A credit in fine print did appear in which Murphy was given credit for the photo.
A short time after the photo appeared on the radio station’s website, visitors to the site began sending in copies of the photo after making their own alterations to it. The images that were submitted were altered to varying degrees. Some contained significant alternations, while others reflected only minor changes. The radio station encouraged visitors to the website to create these images by posting, “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 website.
In June of 2007, the radio station received a letter from Murphy’s attorney accusing the station of violating Murphy’s copyright. The station promptly removed the photo from its website, along with all of the images submitted by the visitors to the website. Subsequently, during Carton and Rossi’s radio show, they allegedly impugned Murphy’s personal integrity and allegedly inferred that Murphy was a homosexual. As a result, Murphy filed a complaint alleging claims for copyright infringement and defamation.
As to the copyright infringement claim, Murphy first asserted that the radio station defendants had violated Section 1202 of the Digital Millennium Copyright Act by removing “copyright management information,” specifically, the credit that was located on the magazine page. In response, the radio station defendants argued that the DMCA did not apply to the facts in this case because in order to come within Section 1202, the information removed must function as a “component of an automated copyright protection or management system.” Judge Pisano agreed with the defendants, finding that Murphy’s claims under the DMCA failed.
Murphy also claimed that the altered photographs submitted by the visitors to the website constituted copyright infringement. The radio station defendants, on the other hand, argued that the altered photographs constituted a “fair use” of the work. In ruling on this issue, Judge Pisano went through a very detailed analysis of the four factors of the Fair Use test (the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the use; and the effect of the use on a potential market) and found that the balance of the four factors weighed in favor of the radio station defendants, and therefore concluded that their use of the work was in fact a fair use. Accordingly, plaintiff’s copyright infringement claims were dismissed.
As to the defamation claim, Murphy alleged that during their radio show Carton and Rossi impugned his personal integrity and inferred that he was a homosexual. The radio station defendants argued that this defamation claim should also be dismissed because the statements allegedly made constituted rhetorical hyperbole and, in any event, were non-defamatory.
Here, Judge Pisano noted that of particular importance in this case was the context in which the alleged statements were made. There was no dispute that the statements were alleged to have been made during a shock jock radio show in which the defendants Rossi and Carton typically delivered provocative and caustic dialog to their audience. The Judge also noted that the nature of the radio show was underscored by the subject photograph in this case. Here it appeared that Murphy’s photo 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. Accordingly, the Court, having considered the content, verifiability and context of the alleged comments, found them to be rhetorical hyperbole, name-calling, or verbal abuse. As a result, Judge Pisano dismissed the defamation claims.
Finally, the Court also noted that even if it had not found the statements to be rhetorical hyperbole, the Court would nevertheless have dismissed plaintiff’s defamation claim which was based upon the allegation that Carton and Rossi inferred that Murphy was a homosexual. Here, Judge Pisano concluded that referring to someone as homosexual would not tend to harm the reputation of that person as to lower him in the estimation of the community.
For all of these reasons, therefore, the Court granted the radio station defendants’ motion for summary judgment and dismissed the copyright infringement and defamation claims.
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