Is Using A Photo Without Credit A Separate Violation Of The DMCA?

One of the worst parts of the DMCA is the anti-circumvention clause, which makes it a separate violation just to circumvent various "protection" measures -- usually DRM. There is a separate clause related to this, which focuses on altering "copyright management information" which most people have always believed to mean the digital information about the copyright holder associated with the DRM. However, a court case involving some naked DJs is putting that to the test. THREsq explains the details of the case:

In 2006, New Jersey Monthly magazine hired photographer Peter Murphy to shoot WKXW hosts Craig Carton and Ray Rossi for a "Best of New Jersey" issue naming the pair as "best shock jocks" in the state. The two radio hosts were photographed standing, apparently nude, behind a WKXW sign.

Later, after the magazine had come out, the WKXW website took a scanned copy of the photograph and put it on its website, inviting its fans to take the image, manipulate it, and submit the results. The station stripped away NJM's caption and Murphy's photo credit and never got permission to use the copyrighted photograph.

There are a variety of legal issues raised in the case (including a defamation claim for how the DJs reacted after Murphy complained), but the interesting one is that Murphy claimed that simply removing the credit line on the photo is an entirely separate DMCA violation, whether or not the use of the photo infringes itself, because it messed with the "copyright management information." The radio station and the DJs reasonably argue that this is preposterous, and the lower court agreed, granting summary judgment. However, the appeals court feels differently, and thinks it's an issue worth exploring, and sends it back to the district court to explore.

The court goes through what feels like a tortured reading of the DMCA to come to this conclusion, and determines that while this result may not be "desirable, it is not absurd." Really? It seems pretty absurd that you can violate a separate part of copyright law just by removing a credit. If this actually is ruled reasonable in court, it could mean that even in cases of fair use, if you remove the credit, you could still end up violating the DMCA. That doesn't make much sense.

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