## Facts

- A professional photographer created a posed photograph of two radio hosts for publication in a magazine issue featuring an award; the photographer retained the copyright.
- A radio-station employee scanned the photograph from the magazine and posted it to the station’s website and another site without the photographer’s permission.
- The station’s posting removed the magazine’s surrounding context and identifying references and did not credit the photographer.
- The station invited the public to submit manipulated versions of the photograph and posted numerous altered submissions online.
- The photographer sued the station owner and the hosts for copyright infringement, violation of the DMCA’s copyright-management-information provisions, and defamation based on on-air remarks.
- The district court granted summary judgment for defendants on all claims, finding fair use as to copyright, insufficient evidence of the DMCA scienter element, and that the photographer was a limited-purpose public figure who failed to show actual malice.
- The photographer appealed.

## Issues

1. Whether evidence that defendants removed identifying information from the scanned publication version of the photograph was sufficient to permit a jury to find a DMCA § 1202(b) violation, including the required knowledge and “reasonable grounds to know” element.
2. Whether defendants’ online reposting of the photograph and solicitation/display of manipulated versions was fair use under 17 U.S.C. § 107.
3. Whether summary judgment was proper on defamation where the district court treated the photographer as a limited-purpose public figure and found no triable issue of actual malice.

## Decision

- The Third Circuit reversed summary judgment for defendants on all claims and remanded.
- On the DMCA claim, the court held the record could support a finding that defendants knowingly removed copyright management information and had reasonable grounds to know the removal would facilitate or conceal infringement.
- On copyright infringement, the court held defendants’ use was not fair use on the summary-judgment record.
- On defamation, the court held the limited-purpose public figure determination and the actual-malice question could not be resolved for defendants as a matter of law on the existing record.

## Legal Principles

- DMCA § 1202(b) liability may be shown through circumstantial evidence that a defendant knowingly removed or altered copyright management information and knew or had reasonable grounds to know the conduct would “induce, enable, facilitate, or conceal” infringement.
- For fair use under § 107, simply republishing a photograph to illustrate an announcement or to draw attention to a commercial website, without commenting on or criticizing the original work, weighs against a finding of transformation.
- The creative, posed nature of a professional photograph generally weighs against fair use when the use is non-transformative.
- Copying an entire photograph weighs against fair use where wholesale copying is not justified by commentary, criticism, or another purpose requiring the whole image.
- Potential market harm includes usurpation of licensing opportunities for online commercial uses; defendants’ own decision to use the photograph can support an inference of market value.
- Limited-purpose public figure status and actual malice often require fact-specific determinations; where the record permits competing inferences, summary judgment is improper.

## Conclusion

The Third Circuit held that the photographer presented sufficient evidence to proceed on claims that defendants removed copyright management information in violation of the DMCA, infringed copyright without fair use, and committed defamation, and it remanded for further proceedings.


Murphy v. Millennium Radio Grp. LLC, 650 F.3d 295 (3d Cir. 2011)