3d Circuit: Removal of NON-DIGITAL author info violates DIGITAL Millennium Copyright Act

Peter Murphy photographed two of New Jersey’s radio “shock jocks” for a NJ magazine. In the magazine, Murphy was identified, in the margin of the photo, as the photographer. The radio station that employed the jocks scanned the image, deleted Murphy’s name from the margin, and posted the photo on their website for a promotion.

Murphy sued for violation of §§ 1202(b) & (c) of the Digital Millennium Copyright Act. Section 1202(b) prohibits removal of “copyright management information,” and § 1202(c) defines “copyright management information” as “information conveyed in connection with copies . . . of a work . . . , including in digital form . . . the name of the author . . . .”

The 3d Circuit rejected the station’s argument that § 1201 of the Act—which mentions circumvention of “technological measures”—limits § 1202’s coverage to some sort of automated copyright management system. Instead, the 3d Circuit said that §§ 1202(b) & (c) include automated technological measures, but don’t require that the removed or altered copyright management information be digital or automated.

The court also rejected a weak fair use argument.

The case is Murphy v. Millennium Radio Group LLC, No. 10-2163 (3d Cir. June 14, 2011).

3d Cir: Copyright Act permits prejudgment interest in disgorgement of profits cases

Prejudgment interest is normally associated with making an injured party whole by providing interest on monetary awards for past damages. In William A. Graham Co. v. Haughey, No. 10-2762 (3d Cir. May 16, 2011), the Third Circuit permitted prejudgment interest to be added to an award of the infringer’s profits as well, even where no damages were sought. The Court noted that: (1) nothing in the Copyright Act prohibits prejudgment interest on a disgorgement award; and (2) prejudgment interest and disgorgement serve the same interests (making the claimant whole and preventing unjust enrichment).

3d Cir.: later-created "memorandum of transfer" of copyright not enough; historical evidence of transfer also required

Section 204(a) of the Copyright Act requires that, to be valid, a transfer of copyright ownership must be in writing, such as a “memorandum of the transfer.” The Third Circuit recently rejected the Ninth Circuit’s requirement that the memorandum of the transfer be “more or less contemporaneous” with the transfer, and held that a memorandum of transfer executed almost 9 years after the alleged transfer was fine (at least where the transferor and the transferee both signed it). But the court further held that there must also be historical evidence – beyond the later-created memorandum -- that the transfer actually occurred. The accused infringer in the case (who was not the transferor) had successfully moved for summary judgment challenging that the transfer ever occurred, and the Third Circuit affirmed that the transferee failed to raise a genuine issue of material fact on that point.

The case is Barefoot Architect, Inc. v. Bunge, No. 09-4495 (3d Cir. Jan. 14, 2011).

3d Circuit copyright validity decision re registration of a "group" of things

The 3d Circuit recently decided an interesting copyright dispute involving a sculptures made to resemble large rocks inscribed with various poems. I think the court's discussion of the issue of infringement isn't that noteworthy, but its discussion of the validity of the plaintiff's registration is.

In Kay Berry, Inc. v. Taylor Gifts, Inc., No. 04-3809 (3d Cir. Aug. 30, 2005), the plaintiff created a bunch of different rock/poem sculpture products (these were mass-produced items, not, you know, "museum" art). The plaintiff registered them en masse by sending the Copyright Office a catalog containing photos of its entire line of rock/poems. The Copyright Office issued a single registration for "sculptural works with design and text."

The defendant knocked off one of the rock/poems and, when sued, argued that the registration was invalid as a "group registration" under section 408(c)(1) because they weren't "related" enough. The 3d Circuit agreed that the registration wasn't valid under the group registration rules promulgated by the Copyright Office at 37 CFR §§ 202.3(b)(4) -(9), because those rules are the only authority for registration of a "group" of related products, and they don't explicitly extend to a group of sculptural works.

The court, however, said that the registration was valid as a single work registration under 37 CFR § 202.3(b)(3), which permits a single registration of a "published work" of a single claimant such that "all copyrightable elements that are otherwise recognizable as self-contained works . . . are included in a single unit of publication." The court rejected the argument that, for a single work registration under this rule, the works had to be "related."

In a long footnote, the court directed the district court, on remand, to determine the scope of such a copyright. In particular, the court intimated the possibility that a published work containing both new and pre-existing materials may be limited in some way, perhaps to only the expressive material added by the claimant.