Use of Photos by News Reporters Is Not Necessarily Fair Use

Many news reporters use photos and other copyrighted materials and then claim fair use as a defense to infringement claims. Recently, the Third Circuit held in Murphy v. Millenium Radio, 2011 WL 2315128 (3d Cir. June 14, 2011) that:

“[i]f it were possible to reproduce [Murphy’s] unaltered work, as a whole, without compensation under the guise of news reportage—a ‘traditional, reasonable, or likely-to-be-developed market’ for professional photographers—it would surely have a ‘substantially adverse impact’ on [Murphy’s] ability to license his photographs.”

In the Murphy case, Murphy, the photographer, was hired by a magazine, New Jersey Monthly (“NJM ”) to take a photo of Craig Carton and Ray Rossi, who at the time were the hosts of a show on the New Jersey radio station WKXW, which is owned by Millennium Radio Group.  NJM  used the photo to illustrate an article in its “Best of New Jersey” issue naming Carton and Rossi “best shock jocks ” in the state.

The photo (“the Photo”) depicted Carton and Rossi standing, apparently nude, behind a WKXW sign.  Murphy retained the copyright to the Photo.  An unknown employee of WKXW then scanned the Photo from  NJM and posted the resulting electronic copy to the WKXW website and to another website, myspacetv.com.  The resulting image, as scanned and posted to the Internet, cut off part of the original  NJM caption referring to the “Best of New Jersey” award.  It also eliminated NJM’s gutter credit identifying Murphy as the author of the Photo. The WKXW website invited visitors to alter the Photo using photo-manipulation software and submit the resulting versions to WKXW.  A number visitors eventually submitted their versions of the photo to WKXW, and it posted 26 of those submissions to its site.  The Station Defendants never received Murphy’s permission to make use of the Photo.

When Murphy discovered the Photo on the WKXW website, he communicated, via his attorney, with WKXW, demanding that the alleged infringement stop.  Shortly thereafter, Carton and Rossi made Murphy the subject of one of their shows, allegedly stating that one should not do business with him because he would sue his business partners.  In April 2008, Murphy sued the Station Defendants for violations of § 1202 of the Digital Millennium Copyright Act of 1998 (“DMCA”), copyright infringement under the Copyright Act, 17 U.S.C. § 101 et seq., and defamation under New Jersey law.

After a thorough analysis of the fair-use defense, the Third Circuit held that all factors considered for a fair use defense weighed in Murphy’s favor.  Hopefully news reporters will learn that it’s best to obtain a license for using photos in news reports.

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