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Murphy v. Millennium Radio Group LLC

March 31, 2010


The opinion of the court was delivered by: Pisano, District Judge.


This is an action alleging copyright violations and defamation brought by Plaintiff Peter Murphy against Millennium Radio Group LLC ("MRG"), the owner of the radio station WKXW 101.5, and two of its talk show hosts, Craig Carton and Ray Rossi. Presently before the Court is a motion by Defendants for summary judgment. Plaintiff has opposed the motion and the Court decides the matter without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons below, Defendants motion is granted.

I. Background

At all times relevant to this action, Defendants Carton and Rossi worked as "shock jock" radio hosts for WKXW, the radio station owned by defendant MRG. Defendants Statement of Material Facts ("DSF") and Plaintiff's Response to DSF ("Pl. R.") ¶¶ 1. In March 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. Id. ¶¶ 2. A photograph of Carton and Rossi taken by Plaintiff Murphy appeared in the print edition of New Jersey Monthly and accopanied this feature article. Id. At the time the photograph was taken, Murphy was working as an independent contractor for New Jersey Monthly. Id. ¶¶ 3.

The photograph at issue showed Carton and Rossi appearing semi-nude while holding a WKXW radio station logo across their mid sections. Id. 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. Id. ¶¶ 4. The image was also posted on the website on a page that contained material referring to Carton and Rossi. Complaint ¶ 12, Exs. D, E.

No copyright notice appeared on either of the two pages of New Jersey Monthly on which the photo was printed. DSF and Pl. R. at ¶¶ 6. Nor was there a watermark embedded or printed into the photo that identified its owner or photographer, id., rather, a credit in fine print appeared in the gutter of the printed page where Murphy, along with other photographers, was credited, see Complaint, Ex. A. This credit was inserted onto the page by a New Jersey Monthly magazine employee who composed the page using Adobe InDesign software. Declaration of Donna Panagakos.

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. See, e.g., Complaint, Ex. H. For example, one of the altered images had Carton and Rossi in bikini tops and displayed the phrase "2007 Jersey Girls Calendar" in place of the station's logo on the sign held by the pair. Id., Ex. G. Another photo showed Carton and Rossi holding a sign altered to read "Will Work For Ratings." The images that were submitted were altered to varying degrees, some contained significant alterations while others reflected only minor changes. Id., Exs. G, H. The radio station encouraged visitors to their website to create these images by posting "Send in your Photoshopped alterations of The Jersey Guys NJ Monthly photo" on the station's website. Id., Ex. C. The station displayed the visitor's altered photos on its site. See id., Exs. G, H.

In or about June of 2007, the radio station received a letter from Murphy's attorney accusing the station of violating Murphy's copyright. DSF and Pl. R., ¶¶ 12. Surprised by the letter, the station promptly removed the photo from its website along with all of the images submitted by visitor's to the website. Id. Plaintiff alleges that sometime thereafter, during Carton and Rossi's radio show, Carton and Rossi "impugn[ed] Murphy's personal integrity and repeatedly characterize[d] him in a factual way as 'a man not to be trusted' in a business environment; a man who 'will sue you' if you have business dealings with him and, in substance, as a man with whom 'a persons should avoid doing business.'" Compl. ¶ 16. Plaintiff further alleges that Carton and Rossi "inferred Plaintiff was a homosexual." Id.

This action followed. Plaintiff brings claims for copyright infringement, violations of the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. § 1201, et seq., and defamation. The complaint contains the following counts: Count I--Copyright Infringement Against Millennium, Count II--Copyright Infringement Against Carton, Count III--Copyright Infringement Against Rossi, Count IV--Vicarious Copyright Infringement Against Millennium, Count V--Contributory Copyright Infringement Against Carton, Count VI-- Contributory Copyright Infringement Against Rossi, Count VII--Contributory Copyright Infringement Against Millennium, Count VIII--Vicarious Copyright Infringement Against Millennium, Count IX--Violation of the DMCA Against Millennium, Count X--Violation of the Digital Millennium Copyright Act Against Carton, Count XI--Violation of the Digital Millennium Copyright Act Against Rossi, Count XII--Vicarious Infringement of the Digital Copyright Act Against Millennium, Count XIII--Defamation of Character Against Carton, Count XIV--Defamation of Character Against Rossi, Count XV--Defamation of Character Against Millennium. Defendants have moved for summary judgment on all claims.

II. Analysis

A. Summary Judgment Standard

A court shall grant summary judgment under Rule 56(c) of the Federal Rules of Civil Procedure "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The substantive law identifies which facts are critical or "material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A material fact raises a "genuine" issue "if the evidence is such that a reasonable jury could return a verdict" for the non-moving party. Healy v. N.Y. Life Ins. Co., 860 F.2d 1209, 1219 n.3 (3d Cir. 1988).

On a summary judgment motion, the moving party must show, first, that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party makes this showing, the burden shifts to the non-moving party to present evidence that a genuine fact issue compels a trial. Id. at 324. In so presenting, the non-moving party may not simply rest on its pleadings, but must offer admissible evidence that establishes a genuine issue of material fact, id., not just "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

The Court must consider all facts and their logical inferences in the light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The Court shall not "weigh the evidence and determine the truth of the matter," but need determine only whether a genuine issue necessitates a trial. Anderson, 477 U.S. at 249. If the non-moving party fails to demonstrate proof beyond a "mere scintilla" of evidence that a genuine issue of material fact exists, then the Court must grant summary judgment. Big Apple BMW v. BMW of North America, 974 F.2d 1358, 1363 (3d Cir. 1992).

B. Digital Millennium Copyright Act Claims

The DMCA states, in the relevant part,

(b) Removal or alteration of copyright management information.--No person shall, without the authority of the copyright owner or the law--(1) intentionally remove or ...

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