Photog Can Fight Use of Nude Shock Jock Pic

(CN) - A New Jersey radio station and two disc jockeys failed to nix a copyright-infringement lawsuit over their use of bawdy, semi-nude photos originally taken for a local magazine, the 3rd Circuit ruled.

In a 2008 "Best of New Jersey" issue, New Jersey Monthly featured the hosts of "The Jersey Guys" on Millennium Radio Group-owned WKXW, Craig Carton and Ray Rossi, as the state's best shock jocks.

Peter Murphy photographed the pair for the honor, with the apparently nude, balding men holding a WKXW sign.

Later, a Millennium employee scanned the image from the magazine, without Murphy's author credits, and posted it on the WKXW website and MySpace page. WKXW encouraged listeners to alter the picture and submit it to the station. When Murphy complained to the station, Carton and Rossi allegedly mocked the photographer on the air, called him a homosexual and a bad business partner. They also ignored Murphy's demands to take the photo down.

Murphy sued the station, Carton and Rossi for Digital Millennium Copyright Act violations, copyright infringement and defamation. Deciding that the station's actions constituted fair use, a federal judge granted summary judgment against Murphy.

Murphy appealed the District Court's finding, claiming that the defendants violated section 1201 of the Digital Millennium Copyright Act when its employee removed his name from the photograph. That provision states to "circumvent a technological measure" is illegal.

Millennium and the DJs argued that section 1201 applies only to digital, not automated measures. The 3rd Circuit decided Tuesday that the section applies to both and revived all of Murphy's claims.

A three-judge appellate panel also rejected the station's fair-use and news-reporting justifications.

"Under many circumstances, reporters will indeed be able to claim a fair use defense against claims of infringement," Judge Julio Fuentes wrote for the court. "For instance, had the Image itself become controversial due to its 'salacious' content, it would likely have been fair use for a newspaper to reproduce it to accompany an article about the controversy."

"However, news reporting does not enjoy a blanket exemption from copyright," Fuentes wrote. "News organizations are not free to use any and all copyrighted works without the permission of the creator simply because they wish to report on the same events a work depicts."

"Instead, news reporting must satisfy the same test as other supposedly transformative works," Fuentes added. "The Station Defendants' use of the Image does not do so."

Millennium simply posted Murphy's photo on its website without news coverage, according to the 30-page ruling.

"Instead, it appears that the Station Defendants did not want to go to the trouble of creating their own eye-catching photo of Carton and Rossi to illustrate their announcement of the NJM award, but simply appropriated the Image for the same purpose. This is far from transformative," Fuentes wrote.

As for Murphy's defamation claim about the DJs' alleged on-air takedown, the Philadelphia-based federal appeals court noted that Millennium trashed its recording of that show after it aired. "In such circumstances, in order for Murphy to make out his claim, it would be obviously essential for him to depose the people who made the statements in the first place, that is Carlos and Rossi," Fuentes wrote. "Yet despite his timely attempts to schedule them for depositions, he was unable to do so before the District Court granted summary judgment against him."

The judges vacated dismissal of Murphy's defamation claims until he can get sworn statements from the shock jocks.

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